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In confirming the dismissal of their action, Boivin JA noted that: “The Judge recognized that the CRA investigators owed the appellants a duty of care … but found that the investigation was not carried out in a manner that could be characterized as negligent and was not motivated by malice or any other improper purpose” (para. 6). ... Regarding the appellants’ contention “that the procedures set out in the Taxation Operations Manual (TOM) 11 for CRA investigations were not properly followed … the Judge rightly noted that the TOM 11 ‘is a set of guidelines that have no binding legal effect and their breach is not evidence per se of a wrongful prosecution or negligence’” (paras. 11, 13). ...

In rejecting NBI’s claim of privilege, Kane J had stated that the spreadsheet was not more than the mere “operational outcome or end product of legal advice” and did not satisfy the requirement that it “communicate … the very legal advice given by counsel.” ... Regarding NBI’s submission (at para. 5) that “the Federal Court erred in putting it in an untenable position whereby it would have to reveal privileged information in order to adduce evidence of sufficient detail to convince the Federal Court that privileged information would be revealed,” Locke JA stated inter alia (at para. 6) that “NBI has … not convinced us that it could have corrected this insufficiency if it had referred to privileged information.” ...

. … To conclude otherwise would reward non-compliance with legitimate document requests from the Minister. In briefly rejecting NBI’s submission (at para. 8) “that ordering production of the unredacted Spreadsheet amounts to requiring NBI to conduct a self-audit or to reveal its ‘soft spots’,” he stated that “we find that the decision of this Court in BP Canada … is distinguishable.” ...

What mattered at the time … was “the relationship of the person acquiring the [house] to the builder—one of purchase and sale—[…], not the relationship between co-purchasers” (Cheema at para. 94). ... Chen’s submission (at para. 12) that “the majority’s reasons were undermined by amendments that were brought to the Act in 2021 [to s. 262(3)], Leblanc JA stated (also at para. 12) that “there is no indication … that the 2021 amendments were made strictly for clarification purposes.” ...

However, the TFSA submitted that the exemption from tax for an RRSP on business income from the disposition of qualified investments in s. 146(4)(b)) should be read into s. 146.2(6) given that the RRSP and TFSA regimes were “mirror images” of each other – so that “that the phrase ‘carries on one or more businesses’ in subsection 146.2(6) should be read so that a TFSA trust that carries on a business of trading investments under well-established common law principles should not be considered to carry on a business for purposes of subsection 146.2(6) when the business involves only trading in qualified investments” (para. 12). In rejecting this submission, and before dismissing the appeal, Biringer JA stated (at para. 13): We agree with the Tax Court that the appellant’s reading is unsupported by the text, context, and purpose of subsection 146.2(6), and would amount to a re-drafting of the provision …. ...

[Thus] … there was an avoidance transaction since the series of transactions would, but for the GAAR, result in a tax benefit – a reductio ...

However, she stated (at para. 32): A finding of a breach of procedural fairness renders a decision liable to be overturned …. However, where the result is inevitable, a court may exercise its discretion to not grant a remedy for the breach …. ...

Goyette JA stated (at para. 106): The Crown’s position is troubling as it seemingly contradicts the Minister’s statutory duty to assess and make decisions based on the facts and the law and to not make deals or take positions that are divorced from these considerations [citing inter alia Harris and Galway] …. This duty ensures that the law is applied consistently, and that Canadians can have confidence in the administration and enforcement of their tax system …. ...

. … [I]n applying section 69 of the Act, the proceeds of disposition are not determined for the business per se, but rather separately for each particular asset comprising the business … that was sold. ...

However, notwithstanding this favourable finding, the taxpayer was found by the Tax Court not to have established that he did not have a services PE given an evidentiary failing: the figures that he had provided to the Tax Court for the active business revenues generated through the LLC were for calendar 2012, whereas the 50% Treaty test was to be applied to the 188 day period straddling the two years – and there was no evidence of what the U.S. ... As to the evidentiary finding of the Tax Court (paras. 26, 28): Lawrence Wolf … did not adduce any evidence with respect to the actual timing of the earning of the revenue in the United States. … As a result, Lawrence Wolf failed to establish that the Tax Court Judge made any palpable and overriding error in finding that there was insufficient evidence for him to conclude that 50% or less of the gross active business income from Lawrence Wolf’s enterprise was earned in Canada during the period that he was present in Canada. ...