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Bromwich J stated (at para 6): … [S]enior counsel for the Commissioner …placed particular reliance on the Full Court decision in Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101 as follows: [A]fter referring to Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at 13 [29] and 15 [34] … [Tamberlin J] applied those authorities …to find that legal professional privilege had been waived over an advice because the substance of the advice was conveyed in a letter sent to the solicitors for the successful appellant in order to emphasise and promote the strength and substance of the case to be made against him. ... I … do not need to resolve the question as to whether reliance stated in a part of an affidavit that is ultimately rejected as inadmissible constitutes sufficient reliance for wavier of privilege. ...

Pelletier JA found (at paras 11, 16, 19, 20 and 21): … [T]he reason for the delay was the perceived need to obtain all the relevant documentation prior to filing a notice of appeal, a process which took some time. ... This is an error of law that warrants our intervention. … The evidence is that Mr. Bygrave spent the period between the expiry of the 90 day period and the filing of his application for an extension of time gathering this documentary evidence. … [T]he time to secure those documents [respecting the circumstances surrounding the sale] would be a circumstance explaining the delay in the bringing of the request for an extension of time. ...

. … Cameco has not allowed the oral interviews that they had done in previous years given the numbers requested and the fact that the subject matter of the audit is similar, if not identical as the ongoing litigation before the Tax Court of Canada. ... She then stated (at paras. 43, 44 and 50): Parliament could not have intended for there to be no restraint on how the Minister questions employees of a corporation. … The Minister’s interpretation imposes a much broader form of examination for discovery than allowed before the Tax Court of Canada without any of the procedural safeguards. The Minister arrived at a different answer than Cameco regarding transfer pricing and it is the role of the Tax Court of Canada to sort out who is correct. … The time and cost involved in allowing the Minister to interview more than 25 Cameco personnel scattered across the world is not proportional to the information being sought since the Tax Court of Canada will determine the issues that are the focus of the requested interviews. ...

. … It is in the nature of reimbursement of cost whereby the three agents paid their proportionate share of the expenses incurred on these said systems and for maintaining those systems. … Once the character of the payment is found to be in the nature of reimbursement of the expenses, it cannot be income chargeable to tax. …'[P]rofit' from operation of ships under Article…9 … would necessarily include expenses for earning that income and cannot be separated, more so, when it is found that the business cannot be run without these expenses. ...

The Court referred inter alia to the statement in Commissioner of Taxation v Raymor (NSW) Pty Ltd (1990) 24 FCR 90 (at 101) that: Once … it is appreciated that an outgoing may be deductible notwithstanding that it may be defeasible, there can be no logical reason why an outgoing pursuant to a contract may not be deductible notwithstanding that the ultimate price payable upon delivery of the goods the subject of a contract may be varied upwards or downwards to reflect the increased cost of the goods. In finding that the trust’s share of the Settlement Amount was incurred by it on June 30, 1999, the Court stated (at paras. 103, 110): [T]he Tribunal [below] relied on the fact that, under the Contract of Sale, the Glendale Property Syndicate was entitled to terminate the contract if an insolvency event occurred in relation to [the purchaser] as a basis for concluding that “it was not known whether the Contract of Sale would proceed” …. However, the cases discussed above do not suggest that, without more, this type of contingency is enough to conclude that an outgoing is not incurred upon execution of a contract. … Neither approval [by the Department of Health and Aged Care] of the Purchaser as an Approved Provider nor approval of the transfer of the Approved Places from Prime Life Corporation to the Purchaser was a condition for payment of the balance of the purchase price. ...

He first found (at para. 37) that the requirement in s. 296(2.1)- that the Minister had assessed “an overdue amount payable under Part IX”- had been satisfied by virtue of “the February 20, 2014 assessment which denied the NHR and as well assessed the amount of GST/HST overdue ….” He then stated (at para. 38, 42): I do not think that in assessing on February 20, 2014 the Minister did determine, per subsection 296(2.1), as to whether an allowable rebate- in particular the NRRPR which had not at that time been applied for- would have been payable to the Appellant as a rebate under Part IX if it had been applied for. … …I do consider that that question [of whether the Appellant would qualify for an NRRPR] is, per subsection 296(2.1), a matter for the Minister to “determine” as part of the assessment of February 20, 2014, which assessment is under appeal herein. … Certainly the Minister had encouraged the Appellant in February 2014 when the NPR application was denied to submit a NRRPR application; signalling that the Minister considered that the Appellant might well qualify for that rebate. ...

. … The retroactive nature of the revocation altered history, causing an altered timeline to replace the original timeline. … Had the appeal come to trial before the Minister issued the June 2017 notice of revocation, I would have been dealing with the original timeline and would have come to a different conclusion. In the original timeline, the revocation would not have occurred, the registration would still have been in place and the reassessment could therefore not have stood. … I do not see any practical difference between a law being given retroactive effect and a fact deemed by law to exist retroactively being given retroactive effect. ...

After noting (at paras. 13-14) that, consistently with s. 2(b) of the Charter, “open and transparent judicial proceedings are fundamental principles of the Canadian legal system,” Noël J found that the Certificate was not adequate support for the s. 37 applications, stating (at paras 16, 20, and 22): …[T]he Certificate … does not give me a sufficient evidentiary basis to conclude that the public interest claim is justified. ... Considering that at this stage in the proceeding, no one except for the Minister or the Applicant has viewed the substance of the information being protected, it would be “inconceivable” to render a decision of such importance without seeing the undisclosed information. … Considering that the Certificate contains only generalized assertions, to be able to adequately assert its privilege, the Applicant should file with the Court on a confidential basis an un-redacted copy of the redacted documents that would relate to the public interest being claimed and any other documents or affidavits that may be appropriate to adequately support the validity of the alleged privilege. ... …[A] certificate is not an affidavit, which usually in the optics of fairness, affords the adverse party the opportunity to cross-examine a witness on their submitted evidence. … ...

. … [T]herefor his conduct, for purposes of the due diligence defence, should be examined from that point on. ... In further finding that due diligence had not been established, he stated (at paras 102 and 103): Since Chriss establishes that a director must carry out his or her duties “on an active basis”, it would appear to follow logically that a director cannot simply delegate his or her oversight duties to a subordinate, at least not without some evidence of an established management system involving, for example, periodic reporting. … …[T]he onus was on him to satisfy the Court that indeed a management system had been put in place. His evidence … falls short of convincing the Court that the Appellant had sought to fulfill his duties “on an active basis” and that he had taken measures to prevent the failure of Atcon and NB Inc. to effect GST remittances after April 30, 2009. ...

Prior to that decision, the appellant in that case had appealed the denial by the ARQ of the input tax refunds claimed by it for QST on those invoices under the equivalent provisions under the Quebec Sales Tax Act, to the Court of Quebec – and also stated that (at para. 25) “I am convinced that the appellant did not truly acquire the supplies for which it claimed ITCs in its net tax calculation.” ... To have a right to the claimed input tax refunds, the appellant had to establish that it had acquired the supplies for which it claimed the refunds and provide invoices issued by the suppliers that conformed to the requirements under the QSTA and the Regulation. … Since all the supplies had a value of $150 or more, the invoices were required to contain a description sufficient to identify each supply. However, none of them had such a description. … The new evidence would not provide any invoice that could qualify for the desired refunds. ...