Date:
20090115
Dockets: A-203-08
A-204-08
Citation: 2009 FCA 9
CORAM: NADON J.A.
SHARLOW J.A.
PELLETIER J.A.
Docket:
A-203-08
BETWEEN:
DAVID
SHERMAN
Appellant
and
HER
MAJESTY THE QUEEN
Respondent
Docket: A-204-08
BETWEEN:
SIMONE
SHERMAN
Appellant
and
HER MAJESTY
THE QUEEN
Respondent
Heard at Toronto,
Ontario, on January 15,
2009.
Judgment delivered from the Bench at Toronto, Ontario, on January 15, 2009.
REASONS FOR JUDGMENT OF THE COURT BY: PELLETIER
J.A.
Date:
20090115
Dockets: A-203-08
A-204-08
Citation:
2009 FCA 9
CORAM: NADON
J.A.
SHARLOW
J.A.
PELLETIER
J.A.
Docket: A-203-08
BETWEEN:
DAVID SHERMAN
Appellant
and
HER MAJESTY
THE QUEEN
Respondent
Docket: A-204-08
BETWEEN:
SIMONE
SHERMAN
Appellant
and
HER MAJESTY
THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Toronto, Ontario, on January 15, 2009)
PELLETIER
J.A.
[1]
These reasons apply to the appeals in files no
A-203-08 and A-204-08 (Simone Sherman). A copy will be placed on each file.
[2]
We are of the view that the appeals should be
dismissed.
[3]
The determinative issue in these appeals is
whether the appellants acquired the software in issue for the purpose of
gaining or producing income, as provided in paragraph 1102(1)(c) of the Income
Tax Regulations, C.R.C., c. 945.
[4]
The trial judge held that they did not acquire
the software for that purpose. This is a question of fact and of inferences of
fact to be drawn from the evidence, in respect of which the standard of review
is that of palpable and overriding error (see Housen v. Nikolaisen,
[2002] 2 S.C.R. 235, para. 25).
[5]
The trial judge set out her reasons for coming
to the conclusion she did. There was evidence to support that conclusion and
the reasons upon which it is founded. The fact that there is other evidence in
the record which would support another conclusion does not lead inevitably to
the conclusion that the trial judge committed a palpable and overriding error.
[6]
It would be an unusual trial in which the record
did not contain evidence for and against each of the parties’ position in the
case.
[7]
The trial judge’s conclusions of fact were
grounded in the evidence and based on her assessment of the whole of the
evidence.
[8]
In this connection, paragraph 25 of Housen v.
Nikolaisen, supra, is instructive:
Although
the trial judge will always be in a distinctly privileged position when it
comes to assessing the credibility of witnesses, this is not the only area
where the trial judge has an advantage over appellate judges. Advantages
enjoyed by the trial judge with respect to the drawing of factual inferences
include the trial judge's relative expertise with respect to the weighing and
assessing of evidence, and the trial judge's inimitable familiarity with the
often vast quantities of evidence. This extensive exposure to the entire
factual nexus of a case will be of invaluable assistance when it comes to
drawing factual conclusions. …
[9]
This issue is
sufficient to dispose of the appeals. Therefore, it is not necessary to deal
with the other issues raised on appeal.
[10]
These appeals will be
dismissed with costs.
"J.D. Denis
Pelletier"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKETS: A-203-08
A-204-08
(APPEAL FROM A JUDGMENT OF JUSTICE WOODS
OF THE TAX COURT OF CANADA, DATED APRIL 3, 2008, IN TAX COURT FILES
2005-1605(IT) G AND 2005-1604 (IT) G.
STYLE OF CAUSE: DAVID
SHERMAN and
HER MAJESTY THE QUEEN
and
SIMONE
SHERMAN and
HER
MAJESTY THE QUEEN
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 15, 2009
REASONS FOR JUDGMENT OF THE COURT BY: NADON J.A.
PELLETIER
J.A.
SHARLOW
J.A.
DELIVERED FROM THE BENCH BY: NADON J.A.
APPEARANCES:
|
Robert McMechan
|
FOR THE APPELLANT
|
|
Ernest
Wheeler
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Barrister and
Solicitor
Ottawa, Ontario
|
FOR THE
APPELLANT
|
|
John H. Sims,
Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
Email this Content