[1] This is an appeal from a judgment of Judge Bowman of the Tax Court of Canada ([2000] T.C.J. No. 72) dismissing the appeal brought by the appellants from the redetermination of the fair market value of a disassembled prototype of a lighter-than-air, heavy-lift vehicle known as the Cyclo-Crane, by the Canadian Cultural Property Export Review Board (the Board).

[2] Even though counsel for the appellants raised various questions before us, the only real point in issue is whether the Tax Court Judge applied a wrong principle, or made a manifest or palpable and overriding error, in confirming the redetermination of fair market value made by the Board. In our view, it has not been shown that the Tax Court Judge committed any such error.

[3] Specifically, it had not been shown that the Tax Court Judge erred in finding as a fact that there was no market for the Cyclo-Crane. The Tax Court Judge noted that in order for such a market to exist, the practical problems relating to the operation of the Cyclo-Crane had to be overcome. He concluded that these problems had not been overcome and that there was no market for the Cyclo-Crane either in the damaged state in which it was donated or in its restored state. This is a conclusion that was open to him, and which allowed him to disregard the opinion expressed by the appellants' experts on this point.

[4] With respect to the appellants' contention that the Tax Court Judge was bound to allow the appeal once flaws had been identified in the opinion expressed by the respondent's experts, we can do no better than to repeat what Judge Bowman said at paragraph 91 of his reasons:

It does not quite work that way. I agree that the $200,000 U.S. value assigned by the CCPERB is higher than that given by either of the respondent's experts and higher than the figure of $200,000 Cdn. suggested by a Vice-President of MacMillan Bloedel. It does not follow, however, that the opinion of the appellants' experts automatically becomes the only evidence on which the court can rely. To put it differently, merely to show that there are flaws in the Board's determination neither shifts the evidential burden to the respondent nor justifies the acceptance of the appellants' position. An appellant who seeks to challenge a determination of value by the Board continues, if he or she is to obtain any type of meaningful relief, to have the primary burden of establishing on a preponderance of evidence a valuation that is higher than that determined by the Board.

[5] In this instance, the Tax Court Judge, after carefully reviewing the evidence, came to the conclusion that it did not support a fair market value in excess of $200,000 U.S. This is a conclusion that is justified by the evidence and which has not been shown to have been arrived at in error.

[6] Finally, we do not see any basis upon which we could reverse the award of costs made by the Tax Court Judge.

[7] The appeal will be dismissed with costs.

"Marc Noël"

J.A.

FEDERAL COURT OF CANADA

APPEAL DIVISION

Date: 20020319

Docket: A-135-00

BETWEEN:

JOHN AIKMAN and the persons

listed in Schedule A

Appellants

and

HER MAJESTY THE QUEEN

Respondent

REASONS FOR JUDGMENT OF THE COURT

FEDERAL COURT OF CANADA

APPEAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-135-00

STYLE OF CAUSE: JOHN AIKMAN and the persons

listed in Schedule A

Appellants

and

HER MAJESTY THE QUEEN

Respondent

PLACE OF HEARING: Montreal, Quebec

DATE OF HEARING: March 19, 2002

REASONS FOR JUDGMENT OF THE COURT BY NOËL J.A.

CONCURRED IN BY: RICHARD C.J.

DÉCARY J.A.

DATED: March 19, 2002

APPEARANCES:

Mr. Christopher R. Mostovac

Ms. Valérie Pelletier

FOR THE APPELLANTS

Ms. Chantal Jacquier

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Ravinsky Ryan

Montreal, Quebec

FOR THE APPELLANTS

Morris A. Rosenberg

Deputy Attorney General of Canada

Montreal, Quebec

FOR THE RESPONDENT

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Aikman v. Canada, 2002 FCA 114

Citations2002 FCA 114

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2002 FCA 114