Search - consideration

According to the evidence, no actions of the Appellant during the years in question with respect to these two activities lead the Court to conclude that a business existed at all, without further substantial actions having been taken by the Appellant to put in to place some kind of activity which would at least have enabled the Court to conclude that some income might have been obtained therefrom. [268]        That leaves for consideration by the Court the more difficult and substantial issue with respect to the expenses claimed in relation to the fishing activity, which undoubtedly was a business during the years in question. [269]        The point raised by counsel for the Respondent that it is the Appellant's duty to keep accurate records of his income and expenses under the provisions of section 230 of the Act is well taken. ... It would be extremely unjust, as far as this Court is concerned, for the Minister to assign to the Appellant all of the income that he did and not give further consideration to the deductibility of many of these expenses, which were obviously expended for the purpose of gaining or producing income from a business. [285]        The appeals are allowed and the matters are referred back to the Minister for reassessment and reconsideration based upon the Court's finding, that on the balance of probabilities, the Appellant is entitled to claim the following further deductions during the years in question. [286]        For the taxation year 1988, vessel repairs, $11,776 crew share $21,063; for the taxation 1989, vessel repairs $100,065, crew share $22,826, food $3,637. ...

In particular, it is limited by “the objective of the provision, the nature of the order and the circumstances in which the order is made” and must be exercised in a manner “consistent with the spirit of the whole of the provisions in question” (paras. 27-28). [107]                      These considerations led Deschamps J. to conclude that an offender’s inability to pay cannot be taken into account when deciding whether to impose a fine (see paras. 1, 37, and 48). [8] Further, the mere fact that property has been used cannot justify a refusal to impose a fine (see para. 32). ... With respect, the bail context is far removed from the present context, and the considerations at play are very different. ...

Furthermore, it was satisfied that the punitive damages had been amply justified: [11]   I note, amongst other considerations, the judge’s findings that the defendants were motivated by profit; the vulnerability to, and erosion of, the plaintiffs trade-mark rights arising from counterfeiting and infringement; the defendants’ attempts to mislead the Court; the fraudulent transfer, after the filing of the Statement of Claim, of ownership of the defendants’ company to avoid liability; the defendants’ recidivist conduct in light of previous orders in respect of the same matter; the defendants’ awareness of the unlawful nature of the activity; the scope of the infringement; the sale of infringing articles after filing and service of the Statement of Claim; the defendants’ failure to produce any records; and, the judge’s conclusion that the infringement was continuous and deliberate. ... The level of blameworthiness may be influenced by many factors, but some of the factors noted in a selection of Canadian cases include: (1)   whether the misconduct was planned and deliberate: … (2)   the intent and motive of the defendant: … (3)   whether the defendant persisted in the outrageous conduct over a lengthy period of time: … (4)   whether the defendant concealed or attempted to cover up its misconduct: … (5)   the defendant’s awareness that what he or she was doing was wrong: … (6)   whether the defendant profited from its misconduct: … (7)   whether the interest violated by the misconduct was known to be deeply personal to the plaintiff … [Italics in original and reference to authorities omitted.] [185]   In a case close to our case, the Federal Court of Appeal (Lam Chan Kee, 2017 FCA 38) noted the following factors used to ascertain the blameworthiness where four infringements had been assessed compensatory damages of $64,000 (4 infringements X $8,000 (retail) X 2 plaintiffs): [11]   I note, amongst other considerations, the judge’s findings that the defendants were motivated by profit; the vulnerability to, and erosion of, the plaintiffs trade-mark rights arising from counterfeiting and infringement; the defendants’ attempts to mislead the Court; the fraudulent transfer, after the filing of the Statement of Claim, of ownership of the defendants’ company to avoid liability; the defendants’ recidivist conduct in light of previous orders in respect of the same matter; the defendants’ awareness of the unlawful nature of the activity; the scope of the infringement; the sale of infringing articles after filing and service of the Statement of Claim; the defendants’ failure to produce any records; and, the judge’s conclusion that the infringement was continuous and deliberate. ...

These factors should then be analyzed to determine what weight they should be given in identifying the location of the property, in light of three considerations: (1) the purpose of the exemption under the Indian Act; (2) the type of property in question; and (3) the nature of the taxation of that property. ...

The argument of counsel for the Appellant on this issue, although ingenious, is rejected. [147] That leaves for consideration the issue of the violation of the provisions of subsection 152(4) by the Appellant. ...

Prima facie the resolution of this issue would appear to involve a consideration of the alleged acts of the corporations in light of their authorized objects and purposes. ...

This leads us to a consideration of the effect of the right to confidentiality on searches, first as a rule of evidence and then as a substantive rule. ...

Accordingly, we assume that it should be possible to achieve a grade of 0.20 oz Au/ton, and applied that grade to all of the reserves used in our projections. [25]     WGM relied for its primary valuation considerations on the calculation of Net Present Value ("NPV") based on discounted cash flow ("DCF") projections. ...

To determine if AIL’s business is being carried on from the fixed place of business, the following factors should be considered:  -                      use of premises by AIL-                      control by AIL over premises-                      legal right to exercise control over premises-                      degree to which premises identified with AIL business-                      who paid for expenses of premises-                      who paid for equipment used at premises-                      who made management decisions-                      what contracts were concluded from premises-                      what AIL products were kept on premises-                      did AIL have any Canadian employees-                      who bore the risk of the operation from premises-                      how many principals were represented by the agent-                      were agents subject to detailed instructions or comprehensive control [48]     Respondent’s counsel stressed the concept of integration, though apart from the case of Panther Oil, this does not appear to be a consideration, let alone a determinative factor. [49]     All agents work from a place, whether a PGA’s office or the agent’s home office, that meets the criteria of a place of business and one of permanence. ...

Whether a reasonable expectation of profit existed may be a factor that is taken into consideration in that analysis.   64                 The Minister and the courts below made much of the fact that the appellant anticipated a capital gain from the eventual sale of the properties.  ...