Date: 20020415
Docket: A-419-00
Montréal, Quebec, April 15, 2002
Coram: DÉCARY J.A.
NOËL J.A.
PELLETIER J.A.
BETWEEN:
LES INDUSTRIES VOGUE LTÉE
Appellant
and
HER MAJESTY THE QUEEN
Respondent
JUDGMENT
The appeal is dismissed with costs.
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20020415
Docket: A-419-00
Neutral citation: 2002 FCA 135
Coram: DÉCARY J.A.
NOËL J.A.
PELLETIER J.A.
BETWEEN:
LES INDUSTRIES VOGUE LTÉE
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Hearing held at Montréal, Quebec on April 15, 2002.
Judgment from the bench at Montréal, Quebec on April 15, 2002.
REASONS FOR JUDGMENT OF THE COURT: NOËL J.A.
Date: 20020415
Docket: A-419-00
Neutral citation: 2002 FCA 135
Coram: DÉCARY J.A.
NOËL J.A.
PELLETIER J.A.
BETWEEN:
LES INDUSTRIES VOGUE LTÉE
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec
on April 15, 2002.)
NOËL J.A.
[1] To begin with, our reading of the evidence leads us to believe that the case, as presented before the trial judge, pertained to fabric as such, both for the purposes of s. 26(4)(b) and for the purposes of s. 26(4)(a) of the Excise Tax Act, R.S.C. 1985, c. E-15, and the respective successors to these provisions, as indicated in the reasons of the trial judge.
[2] In this regard, we consider that the trial judge made no manifest error in his assessment of the facts, including the testimony of the expert witnesses, and that he correctly understood and applied the Trial Division's judgment in The Queen v. Monarch Steelcraft Limited, [1977] 2 F.C. 560, as affirmed by this Court in Harris Steel Group Inc. v. M.N.R., 85 D.T.C. 5140.
[3] However, at the invitation of counsel for the respondent we should like to note that the trial judge made an error in imposing the burden of proof on the Minister of National Revenue, since the burden of establishing that the notices of determination were not in accordance with the Act always lay with the appellant in the proceeding before him (see M.N.R. v. Simpson's Ltd., [1953] C.T.C. 203, at 209).
[4] The appeal will be dismissed with costs.
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
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FEDERAL COURT OF CANADA
APPEAL DIVISION
Date: 20020415
Docket: A-419-00
Between:
LES INDUSTRIES VOGUE LTÉE
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
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FEDERAL COURT OF CANADA
APPEAL DIVISION
SOLICITORS OF RECORD
FILE: A-419-00
appeal from Trial Division judgment in
case T-1270-92 on May 19, 2000
STYLE OF CAUSE: LES INDUSTRIES VOGUE LTÉE
Appellant
and
HER MAJESTY THE QUEEN
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 15, 2002
REASONS FOR JUDGMENT OF THE COURT BY: NOËL J.A.
CONCURRED IN BY: DÉCARY J.A.
PELLETIER J.A.
DATED: April 15, 2002
APPEARANCES:
Christopher R. Mostovac FOR THE APPELLANT
Paul Ryan
Louis Sébastien FOR THE RESPONDENT
Chantal Sauriol
SOLICITORS OF RECORD:
Ravinski, Ryan FOR THE APPELLANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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