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Canada (Revenue Agency), 2020 FC 1156-- summary under Paragraph 13(1)(a) Summary Under Tax Topics- Other Legislation/Constitution- Federal- Access to Information Act- Section 13- Subsection 13(1)- Paragraph 13(1)(a) all information communicated under Bermuda TIEA was protected confidential information The applicants, who were awarded damages in Ludmer regarding CRA’s conduct of its audit of their investments in an off-shore company and who had been denied full access to 8,041 out of 38,090 pages of documents that had been identified as covered by their requests under s. 6 of the Access to Information Act (“ ATIA ”), sought judicial review under s. 41 of the ATIA of CRA’s decision to exempt various of such documents from disclosure. ...

In explaining the significance of the distinction between these two alternatives, Pamel J had earlier noted the statement in IT-335R2 regarding s. 56(2) that “it is normally the … CRA … practice not to assess the same income twice. ...

Miller ought to have documented in his records,” that the “requests do not stray into the problematic type of questions identified in Cameco and BP Canada ” e.g., an attempt “ to compel Mr. ... Regarding the required disclosure of the trust ledger accounts with the law firms, she stated (at para. 59): I do not agree that the Cameco decision establishes that a taxpayer discharges their obligation to satisfy a request that is otherwise within the scope of subsection 231.1(1) with a response that they simply do not have those documents in their possession. … [A] taxpayer is required to exercise reasonable efforts to obtain and provide to the Minister information and documentation that should be in its books and records. ...

. … Parliament … deliberately kept the reference to de jure control in 111(5) instead of adopting a de facto standard. … Evidence was not presented to show that the board did not have the actual authority to make material decisions on behalf of MMV …. No evidence showed that MMV Financial required de facto or effective control of MMV in order to make the utilization of the losses work. … The presence of the longstanding, bright-line test of de jure control bears further witness to the rejection of applying the GAAR in the circumstances of this appeal as regards subsection 111(5). ...

Owen J rejected the CIBC position- that such loss was deemed by s. 39(2) to be a capital loss from foreign currency and therefore was excluded from the application of the s. 40(3.6) stop-loss rule, which applied only if the loss were viewed as having arisen from the disposition of the DHI shares – indicating that this position was inconsistent with a statement in the BMO case that “[t]he gain or loss arising as a result of a disposition of a particular property was (and still is) determined under subsection 40(1)” before any application of s. 39(2). Furthermore, Owen J disagreed with the CIBC position, stating (at paras. 72-72, 137): [S]ubsection 39(2) was not required to address foreign currency fluctuations associated with acquisitions and dispositions of property other than foreign currency because subsection 40(1) read with due regard to the need to convert the amounts identified in that subsection into Canadian dollars already addressed such fluctuations and integrated them into the gain or loss computed under subsection 40(1). … [T]his fact and the fact … that extending subsection 39(2) to dispositions of property other than foreign currency raises difficult issues together strongly suggest that Parliament did not intend that subsection 39(2) apply to dispositions of property other than foreign currency. … In conclusion … subsection 39(2) as it read in 2007 was a stand-alone provision but Parliament did not intend that the subsection apply to dispositions of property other than foreign currency. ...

On the trucks’ return to the company premises, they would sit there for 12 hours in order to permit the oils to settle out in their holding tanks – before the now, somewhat separated oils, were pumped out for further processing at the company’s premises with a view to their sale. Guimond JCQ found that, as this settling-out process was part and parcel of the process for purifying the oils and was more significant than the use of the trucks in transporting the oil, the trucks qualified as processing equipment under the Quebec equivalent of ITA s. 127(9) – qualified property – (c)(i). ...

The Court found that the appellant was a financial institution under s. 149(1)(a)(iii) as a person “whose principal business is as a … dealer in … financial instruments.” ... Turning to the meaning of “dealer,” the Court stated (at para. 29, TaxInterpretations translation): [T]he author Simon Labrecque properly states that the term “dealer” … relates to a person “whose business consists of dealing in financial instruments for its own account…” where this is for the purpose of profit. ... Furthermore, the role of the appellant – which was to the receive a cheque endorsed by the client, to whom it made the charges, followed by cashing it into its own bank account as endorsee – indicates that it was acting as a financial intermediary, the criterion identified by … Labrecque…. ...

In the course of his reasons, he stated (at p. 157): In “ Lindley on Partnership ”, Eleventh Edition (1950).. at page 154, it is stated: … [T]he firm is not recognized by English lawyers as distinct from the members composing it. … [T]he firm as such, has no legal recognition. ... Fordham, speaking for the majority, agreed (at p. 156) with the proposition that “It is with the partnership, as individuals, that a trader must deal… ” but found that it would be contrary to the legislative intent to find that s. 8(3) did not apply. ...

Ellis “as partial compensation for the termination of the Group Life Plan” and (at para. 103) that such payment “providing partial compensation the loss of the status of being a member of the Group Life Plan …constituted a benefit,” Sommerfeldt J stated (at paras. 121, 124): As explained by Bowman J in … Tsiaprailis … where, in addition to the general provision in paragraph 6(1)(a), there is “a specific [statutory provision] containing detailed conditions for the inclusion of an amount in income that would not otherwise be income” … the general provision cannot be used “to fill in all the gaps left by” the specific provision…. I have concluded that subsection 6(4) of the ITA and Part XXVII of the ITR are specific provisions designed to include in income certain amounts in respect of insurance coverage under a group term life insurance policy. … As those specific provisions have not captured the distributions paid in 2011 by the HWT to Ms. ...

The transitional provision indicated that the reduced rate applied inter alia “to any supply … made on or after January 1, 2008.” ... (para. 45) In any event, ETA s. 133 (which, in approximate terms, deems supplies of property to occur when the agreement for their supply is entered into) deemed the agreements to be supplies of the condos, with D’Arcy J. noting in this regard that “[t]he application of section 133 is also not contingent on the existence of the Condo Units at the time the parties entered into the … Agreements ….” (para. 58) D’Arcy J. also accepted the Crown’s alternative argument that the appellant had in fact collected GST at the 6% rate (and thus, would have been required to remit tax at the 6% rate under the s. 225(1) formula, which included "all other amounts collected by the person … on account of tax,” even if the 5% rate applied under the transitional rule), noting that the 6% rate was referenced in the statements of adjustments at the closings, and that the buyers claimed the new housing rebates on the basis of a 6% rate. ...