Eisbrenner – Federal Court of Appeal finds that the onus of proof rested at all times with the taxpayer

One of the difficulties of the taxpayers in a charitable gift program for the donation by them of entitlements to pharmaceuticals (acquired in a distant land) to a registered charity is that they had no granular evidence that they had indeed acquired beneficial ownership of the supposedly-donated pharmaceuticals. Although they had pled that they had acquired the pharmaceuticals, this was also a pleaded assumption of the Minister in her reply.

One of the taxpayers (through counsel) argued that “he only had to raise a prima facie case, which he submitted was a lower standard than the balance of probabilities,” whereupon the onus of proof shifted to the Minister.

This argument was especially unlikely to persuade Webb JA. After noting that in Sarmadi, he had concluded that “[i]f the taxpayer has, on the balance of probabilities, disproven the particular facts assumed by the Minister, …there is no burden to shift to the Minister to disprove what the Tax Court judge has determined that the taxpayer has proven,” he concluded:

[B]ecause Mr. Eisbrenner pled that he had acquired ownership of certain pharmaceuticals and transferred these pharmaceuticals to the in-kind charity, he had the onus of proving that he owned these particular pharmaceuticals on a balance of probabilities.

Neal Armstrong. Summary of Eisbrenner v. Canada, 2020 FCA 93 under General Concepts - Onus.