Citation:
2009TCC160
2007-2665(IT)G
2007-2667(IT)G
2007-2669(IT)G
BETWEEN:
NIELSEN DEVELOPMENT CO. LTD,
GOLDEN KING ENTERPRISES LTD,
JASON LO
Appellants,
-and-
HER MAJESTY THE QUEEN,
Respondent.
CERTIFICATION
OF TRANSCRIPT OF
REASONS
FOR JUDGMENT
Let the attached certified
transcript of the Reasons for Judgment delivered orally from the Bench at Vancouver, British-Columbia, on
January 21, 2009, be filed.
"E.P. Rossiter"
Signed in Ottawa, on March 20th,
2009.
IN THE TAX COURT
2007-2665(IT)G
2007-2667(IT)G
2007-2669(IT)G
BETWEEN:
NIELSEN DEVELOPMENT
CO. LTD,
GOLDEN KING
ENTERPRISES LTD,
JASON LO
Appellant;
- and -
HER MAJESTY THE
QUEEN,
Respondent.
--------------
Held before Mr. Associate Chief
Justice Rossiter in Courtroom No. 602, 6th Floor, 701 West Georgia Street,
Vancouver, B.C., on Wednesday, January 21, 2009.
--------------
APPEARANCES:
Mr. C. Sturrock, For the Appellant;
Mr. R. Grewal, For the Respondent.
--------------
THE REGISTRAR: F.
Richard
--------------
Allwest
Reporting Ltd.
#1200
- 1125 Howe Street
Vancouver,
B.C.
V6Z
2K8
Per: C. Beaton
REASONS FOR JUDGMENT
(Delivered Orally in Vancouver, B.C. on January 21, 2009)
THE REGISTRAR: The court will now render its judgment in
appeal number 2007-2665(IT) Between Nielson Development Company Ltd and Her
Majesty the Queen; 2007-2667(IT)G between Golden King Enterprises Limited and
Her Majesty the Queen; and 2007-2669(IT)G between Jason Lo and Her Majesty the
Queen. Counsel for the appellant, Craig Sturrock; counsel for the respondent,
Raj Grewal.
JUSTICE: This is the oral judgment of the court in the
cases called by the registrar. Nielson Company limited and Jason Lo et al.
Jason Lo owned 100 percent of Golden King Enterprises
Limited. Golden King owned 100 percent of Nielsen Development Company Limited,
Nielsen Operated PoCo Inn Best Western in Port Coquitlam, British Columbia.
Nielsen had a management agreement with Mountain Tai Investments Company
Limited to manage the PoCo Inn. Mountain Tai was owned by Phoebe Lo, Jason
Lo's wife.
In 2003 taxation year, Nielsen paid Mountain Tai $275,000 in
management fees to manage the PoCo Inn. CRA disallowed $223,330 of this fee as
being unreasonable in the circumstances saying the management fee should not be
any greater than $51,671 for 2003.
For 2004 taxation year, Nielsen paid Mountain Tai $300,000
as management fees to manage the PoCo Inn. CRA disallowed $246,749 of this as
being unreasonable in the circumstances, saying the management fees should be
no greater than $53,251 for 2004.
Reassessments were issued accordingly, and the appellant
appealed.
Jason Lo was involved in trying to broker the sale of some
B.C. Fast Ferries to China. In doing so, he traveled to China five or six
times, but the deal ultimately fell through sometime in 2003. Within China he
took cash advances from Golden King, on a credit card of $20,503 plus other
cash advances. The $20,503 of cash advances was expensed by Golden King. Mr.
Lo says he used the money to wine and dine people in China while he was trying
to broker the sale of the B.C. Fast Ferries. He could not produce any
documentation and receipts or particulars. CRA disallowed the $20,503 as an
expense to Golden King and assessed the money as a shareholder benefit to Jason
Lo. At the time, Jason Lo was owed hundreds of thousands of dollars in
shareholders loan by Golden King. Jason Lo says it was a legitimate business
expense to earn income, CRA says it was a shareholders benefit and reassessed
Jason Lo accordingly, and Jason Lo appealed.
There are other appeals on other similar issues, or
collateral issues with Jason Lo, Golden King and Mountain Tai. All have been
settled or adjourned pending the outcome of these appeals.
Issues.
1. Are the management fees paid by Nielsen to Mountain Tai
reasonable under section 67 of the Income Tax Act?
2. Is the $20,503 cash advances to Jason Lo by Golden King
a shareholder benefit to Jason Lo, or a reimbursement of business expenses from
Golden King?
3. If the $20,503 is a shareholder benefit to Jason Lo, can
it be treated as an adjustment to Jason Lo's outstanding credit balance on the
shareholder account of Golden King?
The position of the parties is evident from the introduction
of the facts on these two appeals. The two appeals proceeded on the basis of
common evidence.
Turning to the facts. In addition to the facts referred to
in the introduction I just gave, the following facts were adduced to trial.
There is some conflict and some facts, but I will discuss this later.
First of all, dealing with the cash advances. In addition
the facts already mentioned, Jason Lo gave evidence and he was firm that:
a) the cash advances were spent for business purposes for
Golden King, not personally; and
b) the cash advances were used to wine and dine prospective
purchasers of the B.C. Fast Ferries in China.
He provided no supporting documentation, only the credit
card advance documents. He provided no particulars as to who, what, when,
where or how the wining and dining took place, or the specific amounts. He
didn’t write down what he spent the money on. When pressed by the court, there
was no further explanation was given. He explained that in China at that time,
credit cards were not used widely. It was a closed society, so to speak, and
everything in the society was cash based. It was accepted by CRA that this
brokerage deal was a business venture of Golden King in China.
On the management fees, Jason Lo was operating business in Canada
since the early 1980s. In 1983, he purchased a hotel in Golden B.C. He and
Phoebe Lo, his wife, operated this hotel in every aspect. It was the first
time they were in the hospitality business. Phoebe Lo was paid a salary at the
time. The hotel consisted of 42 rooms, a swimming pool and sauna. There was
no restaurant, no lounge, and it was sold in 1989.
In 1989, Mr. Lo purchased a Best Western Northgate in Nanaimo,
B.C. He and Phoebe Lo managed the hotel, with Mr. Lo doing more and more
outside business interests, including act as an agent for some China beer in
western Canada from 1980 to 1992; acting as a broker for fishmeal from Peru to China
from 1989 to 1993.
He was involved in the hotel business, but his involvement
was declining on the day-to-day operations. This particular hotel operation
had 76 rooms with meeting rooms, a 100-seat pub, a 75-seat restaurant which was
eventually leased out but then taken back by the Lo's, and it was sold in
1996.
In 1995 he purchased the Exhibition Park Best Western. It had
61 rooms, no restaurant, no lounge, and the management was done by Phoebe Lo.
And this was sold in 2000.
In 1996, Nielsen purchased the PoCo Best Western. It
contained 51 rooms, had a sauna and whirlpool. They had leased out the
restaurant. It was expanded in 1998 to double the size, plus at the time they
added two meeting rooms, a lounge, an exercise room, and expanded the front
desk area. So that at the time in 2003-2004 it had 99 rooms, 5 meeting rooms
with a maximum of 350 people. Restaurant was leased out. They had the lounge,
a spa area, an exercise room, and it was managed by Phoebe Lo through Mountain
Tai.
In terms of employees, at the time at the PoCo Inn, you had
the management of Phoebe Lo through Mountain Tai, you had Leonard Bergquist who
was the general manager, you had a lounge supervisor, a housekeeping supervisor
who was the brother of Mrs. Lo. There was no front desk manager at the time if
I recall. There was a night auditor and there was approximately a total of 30
people in total.
In terms of who did what, or what was anyone's specific
duties as between Phoebe Lo and the General Manager, there is a divergence of
the facts to some extent in common facts in other points.
When I refer to the general manager's evidence, he basically
said the following: Phoebe Lo did the purchasing, she made the accounting
decisions, she did the cheque signing. Some other people might have written
the cheques but she signed the cheques. She made all decisions with respect to
charitable donations, including contributions and who attended charitable
functions. She decided all the room rates, rack, corporate, discounts,
whatever the case may be for special teams. She decided all the equipment
rates, whether it was for sound systems or whatever the case may be. All the
equipment, she decided those rates. She decided the rates for the food and
beverage. She made decisions with respect to what furniture was to be
purchased, when, where and how, including all carpet. She made all decisions with
respect to interior decorating. She made all decisions with respect to
marketing and marketing attendances and who was going to go and when. She made
all advertising decisions, she monitored all the costs, she and the general
manager did the hiring and firing together. She did the budgeting apparently
with Jason. She confirmed the rates for the hotel as well as the occupancy on
the daily basis. Mr. Bergquist oversaw the operation of the lounge. She was
responsible for room maintenance and housekeeping in conjunction with her
brother. She looked after all the money in and all the money out. She looked
after the interior design for the hotel. He made some decisions based upon
previous decisions that were made and how he knew Phoebe Lo would want the
hotel run. And he was the first responder on an emergency basis.
Now, this general manager had plenty of experience in hotel
management, being in the business for about 40 years. The general manager was
of the view that he and Phoebe Lo co-managed the hotel. I think that was a
charitable description. He was in a subordinate role, a facilitator for Phoebe
Lo, who made all the decisions on a day-to-day basis for the operation of the
hotel. In other words, he carried out the directions of Phoebe Lo. He took
the lead in the lounge area, because he had experience in that area. He was
the public face to some extent when Phoebe Lo would send him out to community
events, and he backstopped Phoebe Lo when she was not on site. In terms of
decision making according to the general manager, it was 80-20. 80 percent
made by Phoebe, 20 percent made by him. In terms of responsibility it was 80
percent responsibility of Phoebe, and 20 percent his responsibility and both
were basically available 24/7.
Phoebe Lo's evidence was much the same as the general
manager. She said she had full responsibility for all budgeting, marketing,
hiring, firing, setting up systems for everyone to follow, giving directions
with respect to computer retention or developed the computer system.
Establishing all rates and discounts if any. Charitable donations,
responsibility for charitable events, advertising, budgeting with her husband,
repairs and renovations, report to Jason Lo, sending the general manager to
functions, direction give to general manager, looking after the money in,
looking after the money out, cheque signing, purchasing, housekeeping. She
didn’t do the accounting. She was on the site from 8 A.M. to 4 P.M. Monday to
Friday plus weekends when required. Her effort basically meant that they did
not need an assistant manager, a marketing director, a controller or an
interior designer.
The general manager went to the bank, as did she. The
general manager would get quotes and she told him to get quotes. He would confirm
the night audit, he would check the inventory. He played golf when she told
him to play golf, he did volunteer work when she told him to do volunteer
work. He was available for emergency calls. They both did the hiring and
firing and they both took some responsibility for accounts receivable. She
said, "I give the general manager direction and we work together typically
on a day-to-day basis."
Patricia Manchester, had a telephone conversation with the
general manager early in the audit phase and she took notes of her
conversation, Exhibit R-1 tab 12, May 6, 2006, at 3 P.M. This conversation is
in contrast to the general manager's evidence and Ms. Lo, as to who did what.
The general manager and Ms. Lo said Jason Lo had little to do if anything with
the management of the hotel. He might drop in, in the evening. It was all
left up to Ms. Lo. But on the telephone call, the general manager appears to
answer otherwise.
In this telephone call, according to Ms. Manchester, the
front desk was Jason Lo's responsibility. The sales and marketing groups were
Jason's responsibility and the general manager. The discipline was the general
manager's responsibility. The scheduling for the front desk was Jason's. The
lounge was the supervisor's responsibility, the housekeeping was Mrs. Lo's
brothers responsibility, the budget was done by Jason Lo, the emergencies were
handled by the general manager and maybe Ms. Lo, and the housekeeping was done
by Ms. Lo and her brother.
Now, some of those things are consistent with what Mrs. Lo
had said in her evidence and what the general manager said in his evidence and
some of them are inconsistent. In particular the front desk and Jason Lo,
sales and marketing groups and Jason Lo, scheduling for the front desk and Jason
Lo, and the budget, to some extent, to Jason Lo.
The general manager had apparently told Ms. Manchester that
he was the number two guy in management behind Jason. If Jason was not in then
the general manager is in charge on his own. He jointly runs the hotel with
Jason.
Separate and apart from these facts as to who did the
management and what were their respective responsibilities, the operation was
very successful financially with a significant operating profits, and I refer
to Exhibit A-3. The operating profit, as a percentage of the gross for 1996
was 47.5 percent; 1997, 38.8 percent; 1998, 34.5 percent; 1999, 35.9 percent;
2000, 34 percent; 2001, 43 percent; 2002, 40 percent; 2003, 39 percent; 2004,
42.9 percent; 2005, 44 percent; 2006, 46.5 percent; 2007, 44 percent. Very
impressive figures on any day of the week.
There was a management services contract in existence since
February 11th 1992, between Nielsen and Mountain Tai. This contract
gave extensive, and broad management responsibility to Mountain Tai, which
could have evolved to the greater responsibility or lesser responsibilities
dependant upon the presence or absence of Jason Lo. And I specifically refer
to Exhibit A-1, tab 17, clauses 2.01 and 2.02, which were very general, and which
basically would allow the management company to assume whatever level of
responsibility was necessary dependent upon the absence of Jason Lo. And as it
turns out, the more Jason Lo was absent from the hotel operation, the more
responsibility rested with Mountain Tai, as the facts have shown.
Annual management fees, according to Jason Lo and Phoebe Lo,
were decided by them together annually. There appears to be negotiations that
go on between them. Phoebe Lo tells Jason Lo what she thinks in terms of the
gross and the net, that is whether she made a contribution to it, the awareness
of the market price of other hotels, and she gave evidence with respect to what
the market management was with respect to the Holiday Inn, one place that they
had looked to purchase.
Her personal attendance on site, if there is any increase or
decrease in profit, any special effort that she had made, such as renovations
or pricing and getting work done. The decision as to management fee was by
Jason Lo, and it was communicated to Mr. Fell. The income tax implications, as
per Mr. Fell, and as per Jason Lo, and as per Phoebe Lo, were never discussed.
Mr. Fell would simply take the figure give to him by Jason Lo and plugged it in
to the tax equation for each entity, Nielsen and Mountain Tai. This is how the
management fees were arrived at. Reference to a 10 percent guideline of the
gross was a reference only. In years when Phoebe Lo was not putting in as much
effort the fees were lower; i.e. in 2000 when she gave birth to her child.
There was nothing done by the accountant to figure out the
market rate for management fees other than what was given to him by Jason Lo
and the suggested 10 percent guideline.
Now those are the facts. I may have left out some facts
here and there, but that is, I believe, a comprehensive summary.
Turning to the analysis. First of all, to the cash
advances.
This is in relation to Jason Lo personally in the allegation
that the cash advances were shareholders benefits. In the pleadings the
respondent assumed as a fact $20,503 of unvouched cash advances. The burden is
upon the appellant to establish the balance of probabilities that the cash
advances were for business purposes and not for personal expenses. On all of
the evidence before me in this issue, I cannot conclude that the appellant has
met this burden. A simple bald statement that they were business expenses for
wining and dining potential customers, end of story, without any explanation as
to who, when, where, how, or the circumstances or quantum of expenditures were
incurred, and no documentation whatsoever, no receipts or anything, not even a
personal note from the person that spent the money, is simply not enough in
this case to discharge the burden of the appellant that the cash advances were
not personal expenses.
Now the issue then becomes whether or not the cash advances
can be said to be a repayment of the shareholders loan of Jason Lo by Golden
King. I do not think that is the case in the facts of this particular case. The
items themselves were expensed in the books of Golden King along with other
items. There was no effort to change the book entry, and there was no evidence
of intent by Golden King to repay the shareholder loan nor was there any
evidence of intent by Jason Lo to have received the payment of his shareholder
loan to the extent of $20,503.
Therefore, the appeal in the issue of Jason Lo, is
dismissed. However, the court will grant the consent judgment as per the
agreement of the parties in the Agreed Statement of Issues of January 16th
2009.
Turning to the issues of the management fees. In the
pleadings the respondent assumes as reply in paragraph 8(p):
"8(p) The duties and responsibilities performed by Phoebe
Lo were similar to those performed by the general manager.
"8(q) Phoebe Lo was not responsible for management
services such as budgeting, accounting, financial services or overall
management of the appellant's operations."
8(r) The amounts of the fees paid to Mountain Tai was based in
the appellant's taxable income.
8(s), amounts paid to Mountain Tai for management fees, $51,673
in 2003, and $53,251 in 2004 are unreasonable in the circumstances."
The issue here is were the management fees reasonable under
section 67 of the Income Tax Act. In looking at what is reasonable, I
look to the test as provided in GABCO v. the Minister of National Revenue,
[68 DTC 5210] at page 7, the last paragraph which reads as follows.
"It is not a question of the Minister or his court,
substituting its judgment for what is a reasonable amount to pay, but rather a
case of the Minister or the court coming to the conclusion that no reasonable
business man would have contracted to pay such an amount having only the
business consideration of the appellant in mind."
Also, in Mohammad v. MNR [97 DTC 5503], the Federal
Court of Appeal said at paragraph 28, in part as follows:
"When evaluating the reasonableness of an expense, one is
measuring its reasonableness in terms of its magnitude or quantum. Although
such a determination my involve an element of subjective appreciation on the
part of the trier of fact, there should always be a search for an objective
component."
When dealing with interest expenses, the task can be
objectified readily. Here I have searched for an objective component in
measuring the reasonableness of these management fees. I found little of
objective component in the evidence before me. Having said that, I believe the
following factors aught to be considered in trying to measure the reasonableness
of these fees.
1. The nature of the management services. Are they total
management services or are they only partial management services? Do they
simply run a room rental in the facility use aspect or does the management
provide a management service to include budgeting, planning, marketing,
physical improvement of the plant, business development, cost cutting and all
aspects of the hands on operation.
2. Management on site. Is management on site a true
manager or are they managers from a afar, like that described by the general
manager when he described the Delta group operation in his Ottawa experience.
3. How are the hotel operations, in comparative terms, to
similar hotel operations in similar markets in terms of efficiency of operations.
You focus here on the efficiency of the operations.
4. What about the effort put in and management services
company in terms of responsibility such as budgeting, renovations,
improvement, planning and execution, money in, money out, responsible for all
the staff as opposed to simply looking after the room rental? Or look at the
tasks undertaken or look at the jobs which are done and carried out by the
management services team.
5. Profitability. The quantum of the profit is a
reflection of the management service has been performed, and how well they
perform.
6. The presence or absence of a management services
contract.
Now there might very well be other factors to be considered,
but those are the ones which come to mind in this particular case. I know
people were submitting and pushing the use of a specific percentage, but I
don't really find any specific basis for using that in this particular case,
other than the bid that was put in, or the quote that was given, and I'd put
little if any weight on that particular quote, and I will explain why.
There was another factor, and that is any special expertise,
training or experience that the management services company might bring to the
table.
The Minister of National Revenue has said that the
management fees were unreasonable in excess of X dollars, and I gave those
figures earlier. The appellant says the management fees were reasonable.
Neither has provided the court with any evidence as to what similar hotels and
similar markets might charge as management fees. All I have is the evidence of
Phoebe Lo, as to the information that she received or obtained when they were
looking at purchasing a Holiday Inn. An offer presented to Nielsen by Bartek
hospitality is to be given no weight, as it wasn’t substantiate the terms of
how it came about, what services would be provided, the basis for the fees or
really any background information for the amount presented.
The court is not in the position and really cannot
substitute its own opinion as to what is an appropriate management fee in the
circumstances without appropriate evidence in this regard. I do not have that
appropriate evidence. All I can do is determine on the evidence before me, as
to whether or not the amount is reasonable under section 67 in the Income
Tax Act, as per the GABCO case.
I accept the evidence of Phoebe Lo and the general manager
as to the duties and responsibilities of Phoebe Lo, that is Mountain Tai, at
the PoCo Inn. I am not rejecting the evidence of Patty Manchester. She gave
her evidence in a concise, forthright, and direct manner. She was well versed
and prepared and well documented. She made a determination based on the
information she was given and she really couldn't do anything else because of
the lack of access she had to the key people who made the decisions on the
management fees. She was told to talk to Mr. Fell, the accountant, who had
nothing to do with deciding the amount of the management fees. He only took
the figure when it was given to him. And she also talked to the general
manager who wasn’t involved in the decision making either. He was, I believe,
concerned in his conversations with her, of his own personal liability as is
shown in Exhibit R-1, tab 7, which was correspondence from the general manager
to Ms. Manchester on May 17th, 2006, where he was writing to explain
how significant he was in the operation of the PoCo Inn, had the appearance to
rationalize why the PoCo Inn gave him the accommodations that he was being
taxed on as an employee benefit.
Ms. Manchester was not given access to Jason Lo. He was
very secretive. Nor did she get to talk to Phoebe Lo, she wasn’t allowed.
They were the key personnel in this whole issue. Ms. Manchester couldn’t come
to any other conclusion given the information she was given or for that matter
that the information she was not given.
As I said, I accept the evidence of Phoebe Lo and the
general manager. I found Phoebe Lo to be a most impressive witness. She was
well informed, obviously very familiar with the hotel operations. She was
direct, forthright and frank. She was firm about her job, she knew her facts,
she knew her job. She was in control, and demonstrated it on the witness
stand.
Here is what the evidence discloses. Jason Lo owns the PoCo
hotel through Nielsen. He is involved in other business matters and relies
upon his wife to run the operation. She has years of experience in operating
similar ventures. She calls all the shots of the hotel and more, and I could
go back to my original comments with respect to the factors to be considered in
the evidence. That is, she was responsible for the purchasing, accounting
decisions, cheque signing, charitable decisions, contribution and who attended,
room rates, discounts, equipment rates, food and beverage rates, furniture and
carpet renovations, marking attendances, advertising decisions, monitoring
costs, hiring and firing in conjunction with general manager, budgeting in
conjunction with Jason, confirming rates and occupancy – overseeing the lounge
was done by the general manager – room maintenance, housekeeping, money in,
money out, hotel interior design. Basically all those decisions was her
responsibility and more.
Not only does she do these things, she also looks out for
new business opportunities. She gets Jason Lo to agree with her budgets and
the business adjustment plans that she presents and then executes accordingly.
She sees what renovations are required, she costs them out, she gets approval,
she goes ahead, she executes all these improvements. She acts like a true
owner on site.
She recognizes what she is not good at. She has somebody
else do the accounting, she has someone else run the lounge, she has someone
else carry out the public relations and the public eye. As to the conflict
between what the general manager testified to in Phoebe Lo as to her
responsibilities and who managed the hotel, and the information the general
manager gave Ms. Manchester in May of 2006, I can only conclude that the
general manager was attempting to overstate his role in the hotel operation, to
protect himself in the assessment against himself as to the reason he was given
the accommodations at the hotel and his desire at the time to protect his
employers.
I accept the evidence of Phoebe Lo. It was compelling and
accurate, to the point, unwavering. And it was just as if she was telling me
what she does everyday. She appears to be a strong, independent person who
knows her business and knows how to run a hotel operation.
Jason Lo is most fortunate to have her to operate his hotel,
because you just cannot get a person who has the obvious devotion and passion
that she brings to the job from somewhere else.
What we have here is we have a reasonable businessman before
us, Jason Lo. He is secretive, but he is obviously successful and strives to
achieve success to improve his economic position. All though I may feel the
management fees are a lot of money to operate a hotel, Phoebe Lo is not your
ordinary hotel manager. She is truly exceptional, and made money, and a lot of
money in my mind, for Nielsen in how she operated the hotel. She conducted her
own negotiations and made a deal annually with Jason Lo as to the management
fee, based to a large extent on the factors that I have mentioned.
In these circumstances:
1. Considering the nature of the management fee services
provided. The services provided here were complete, in a full package:
Everything from seeking out new business, to planning to acquire new business,
to budgeting, to looking after the physical plant and renovations, design
interior, staffing costs, watching, marketing, everything except the accounting
and having the public presence; a very broad range of services that you simply
wouldn’t get from a professional management services company such as the one
described by the general manager in the Delta operations in Ottawa.
2. Management on site. She was on site from Monday to
Friday, 8 to 4, and was available on weekends, and was present and obviously a
key person at all times.
3. The efficiency of the operation. All you would have to
do is look at the operating profit percentage. It was very high. This very
high percentage can only come from a very efficiently run operation. Someone
who is truly hands on.
4. The effort of management. The high degree of effort by
Phoebe Lo is much higher that I think you would get in a standard management
company. As I said, she treated her job as if she was an owner, and she acted
as if she was an owner.
5. Profitability. This operation was very profitable. The
quantum of profit is really a reflection of how an operation is run. In order
to make a profit two things are important: your gross, and your expenses.
Your operating profit here was still very good even in difficult years, and
this is a reflection of how management managed the operation, in particular the
expenses.
Going back to the effort of management, I might add that
Phoebe Lo's efforts are exceptional. She really was doing the job of three or
four individuals. I had named the types of jobs she was doing: the
controller's job, the assistant manager's job, and a variety of other
positions, interior designer. Also her efforts were saving Nielsen
considerable monies. For example, for painting she had obtained a quote for
$100,000. Rather than accept this quote and have someone come in and do the
job, she ratcheted down the operation and had the job done internally for
basically one third of the cost, saving 67,000, which went right into Nielsen's
bottom line.
6. There was a management services contract from 1992,
which was extremely broad and was broad enough and flexible enough to allow the
responsibilities of the management services contract to contract or expand,
depending upon the presence or absence of Jason Lo on site.
Also, the seventh factor was the experience and the special
qualifications of the management company. Here you had Phoebe Lo who had been
in three other hotel operations, and obviously had a wealth of experience to
bring to the table.
On all of the evidence presented, I am satisfied that the
appellant has met the burden that the management fees were reasonable under
section 67, and that these fees are fees that a reasonable businessman would
have contracted to pay having only the business consideration of the appellant
in mind.
The appeal is therefore allowed in this particular matter.
With respect to costs, since both parties were successful in
part, there will be no order as to costs.
Do the parties have any questions?
MR. GREWAL: No, Your Honour.
MR. STURROCK: No, Justice.
JUSTICE: No questions? Thank you, gentlemen for a well-pleaded
case. I ask for the court to be adjourned.
(PROCEEDINGS CONCLUDED AT 2:21 P.M.)
I hereby certify
that the FOREGOING is a true and accurate transcript of the proceedings
herein to the best of my skill and ability.
__________________________________
C. Beaton COURT REPORTER
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