Search - consideration

  [15]         The respondent alleges that, in any case, these settlement offers should not be taken into consideration when costs are awarded since it was legally impossible for her to accept them because the proposed settlements had no factual basis. ... In addition, the examples of exceptional circumstances cited by the former Chief Justice are, indeed, some of the factors listed in subsection 147(3) of the Rules, which must be taken into consideration when determining costs. [17] Thus, that decision supports the statement that analyzing the factors set out in subsection 147(3) makes it possible to determine the appropriate amount of costs ... She stated, however, that those settlement offers should not be taken into consideration when costs are awarded since it was legally impossible for her to accept them because the proposed settlement had no factual basis ...

CONSIDERATION         At one point the Crown had offered to consent to part of the amendment, that of unjust enrichment. ... The passage he quotes sums up all of this and I believe what underlies all of the cases on amendment: Ultimately it boils down to a consideration of simple fairness, common sense and the interest that the courts have that justice be done. ... A good starting point is a consideration of the nature of a time bar defence, keeping in mind that the basic principle is the same for testing both an amendment and a cause of action which has already been pleaded. ...

Gajic's claim a very thorough consideration. It assumed, contrary to the minutes of the Cabinet meeting, that the Lieutenant Governor in Council had denied a remission, but since denial was purely a legislative decision-making function it was not subject to any rules of procedural fairness. ... Thus, although the written argument touches on the jurisdiction point, I limit my consideration to a want of a reasonable cause of action argument which, in effect, is a res judicata submission by reason of the very full treatment of the Provincial Crown's position by the B.C. ... CONSIDERATION [17]      There are two motions to consider, first that of the Federal Crown, to the effect that there is no reasonable cause of action, or alternatively that the Queen in Right of Canada ought not to be a party to the proceedings as the Queen in Right of Canada is in no way related to the relief sought. ...

CONSIDERATION [13]      To begin there are several preliminary submissions to be disposed of. ... Lord Woolf, M.R., was of the view that delay, of itself, was not a consideration which was in issue in Birkett v. ... Perhaps the only additional consideration, when pure delay is involved, ought to be whether it is fair to dismiss the action in question. ...

Gajic's claim a very thorough consideration. It assumed, contrary to the minutes of the Cabinet meeting, that the Lieutenant Governor in Council had denied a remission, but since denial was purely a legislative decision-making function it was not subject to any rules of procedural fairness. ... Thus, although the written argument touches on the jurisdiction point, I limit my consideration to a want of a reasonable cause of action argument which, in effect, is a res judicata submission by reason of the very full treatment of the Provincial Crown's position by the B.C. ... CONSIDERATION [17]      There are two motions to consider, first that of the Federal Crown, to the effect that there is no reasonable cause of action, or alternatively that the Queen in Right of Canada ought not to be a party to the proceedings as the Queen in Right of Canada is in no way related to the relief sought. ...

CONSIDERATION Amendment [9]         In Nabisco Brands Ltd. v. Proctor & Gamble Co. (1985) 5 C.P.R. (3d) 417 the Federal Court of Appeal noted that a pleading may be struck out, at any time, for want of a reasonable cause of action or defence, but that the balance of the grounds for striking out, under subsections (b) through (f) of the predecessor to Rule 221, an identical rule, could not be exercised where the applicant had already pleaded to the impugned portion of a pleading:... ... Canderel Ltd. (1994) 157 N.R. 380, set out a general rule for amendment, that it ought to be allowed at any stage, for the purpose of determining the real question or controversy between the parties, so long as it will not result in an injustice to the other side, injustice which is not capable of being compensated through an award of costs:... while it is impossible to enumerate all the factors that a judge must take into consideration in determining whether it is just, in a given case, to authorize an amendment, the general rule is that an amendment should be allowed at any stage of an action for the purpose of determining the real questions in controversy between the parties, provided, notably, that the allowance would not result in an injustice to the other party not capable of being compensated by an award of costs and that it would serve the interests of justice. ... Adir et Cie (2001) 190 F.T.R 233 that, as to the test for allowing an amendment, "ultimately it boils down to a consideration of simple fairness, common sense and the interest that the courts have that justice be done. ...

He concluded that the decision was a reasonable one, that there was no indication of bad faith on the part of the Minister or his delegate, the Director, that there was no breach of natural justice and that there was no reliance placed on considerations extraneous to the statutory provisions. ... Did the Minister's delegate take into account all relevant considerations in deciding whether to apply the provisions of the fairness provisions of the Income Tax Act? ... Did the Minister's Delegate Take into Account All Relevant Considerations                        [22]            The Motions Judge recited the factors taken into account by the decision-maker in his decision: The decision maker,... considered the following in making his decision: a) the request made by the applicant and the reasons therefor; b) the applicant is a major shareholder in Hillier's Trades Limited and Northern Home Products Limited; c) in filing his income tax return for the 1989 taxation year, the applicant did not include income in the amount of $37,836 in his computation of total income; d)in filing his income tax return for the 1990 taxation year, the applicant did not include income in the amount of $34,632 in his computation of total income; e) in filing his income tax return for the 1991 taxation year, the applicant did not include income in the amount of $40,386 in his computation of total income; f) in filing his income tax return for the 1992 taxation year, the applicant did not include income in the amount of $17,615 in his computation of total income; g) the applicant does not dispute his liability; h) the "self-assessing" system of taxation puts the onus on the taxpayer to properly report income; i)the guidelines established in Information Circular No. 92-2 and Internal Directive ARD-92-01 dated April 16, 1992 were not met in these circumstances. [23]            In my opinion, this list demonstrates that the Minister's delegate, in making his decision considered irrelevant factors while failing to consider at least one very important and relevant factor.    ...

qualified dependant  at any time means a person who at that time personne à charge admissible  S’agissant de la personne à charge admissible d’un particulier à un moment donné, personne qui répond aux conditions suivantes à ce moment: (a) has not attained the age of 18 years, a) elle est âgée de moins de 18 ans; (b) is not a person in respect of whom an amount was deducted under paragraph (a) of the description of B in subsection 118(1) in computing the tax payable under this Part by the person’s spouse or common-law partner for the base taxation year in relation to the month that includes that time, and b) elle n’est pas quelqu’un pour qui un montant a été déduit en application de l’alinéa 118(1)a) dans le calcul de l’impôt payable par son époux ou conjoint de fait en vertu de la présente partie pour l’année de base se rapportant au mois qui comprend ce moment; (c) is not a person in respect of whom a special allowance under the Children’s Special Allowances Act is payable for the month that includes that time. c) elle n’est pas quelqu’un pour qui une allocation spéciale prévue par la Loi sur les allocations spéciales pour enfants est payable pour le mois qui comprend ce moment shared-custody parent in respect of a qualified dependant at a particular time means, where the presumption referred to in paragraph (f) of the definition eligible individual does not apply in respect of the qualified dependant, an individual who is one of the two parents of the qualified dependant who parent ayant la garde partagée S’entend, à l’égard d’une personne à charge admissible à un moment donné, dans le cas où la présomption énoncée à l’alinéa f) de la définition de particulier admissible ne s’applique pas à celle-ci, du particulier qui est l’un des deux parents de la personne à charge qui, à la fois: (a) are not at that time cohabitating spouses or common-law partners of each other, a) ne sont pas, à ce moment, des époux ou conjoints de fait visés l’un par rapport à l’autre; (b) reside with the qualified dependant on an equal or near equal basis, and b) résident avec la personne à charge sur une base d’égalité ou de quasi-égalité; (c) primarily fulfil the responsibility for the care and upbringing of the qualified dependant when residing with the qualified dependant, as determined in consideration of prescribed factors. c) lorsqu’ils résident avec la personne à charge, assument principalement la responsabilité pour le soin et l’éducation de celle-ci, ainsi qu’il est déterminé d’après des critères prévus par règlement. [6]   I also reproduce subsections 122.61(1) and 122.61(1.1): 122.61(1) If a person and, if the Minister so demands, the person’s cohabiting spouse or common-law partner at the end of a taxation year have filed a return of income for the year, an overpayment on account of the person’s liability under this Part for the year is deemed to have arisen during a month in relation to which the year is the base taxation year, equal to the amount determined by the formula 122.61(1) Lorsqu’une personne et, sur demande du ministre, son époux ou conjoint de fait visé à la fin d’une année d’imposition produisent une déclaration de revenu pour l’année, un paiement en trop au titre des sommes dont la personne est redevable en vertu de la présente partie pour l’année est réputé se produire au cours d’un mois par rapport auquel l’année est l’année de base. ... For the purposes of this Appeal, the relevant conditions may be summarized as follows: a)   the individual must be one of the two parents of the qualified dependant; b)   the two parents must not be cohabiting spouses or common-law partners of each other; c)   the individual and the other parent must reside with the qualified dependant on an equal or near equal basis; and d)   the individual and the other parent must primarily fulfil the responsibility for the care and upbringing of the qualified dependant when residing with the qualified dependant, as determined in consideration of prescribed factors. [18]   The Judge then referred to the Regulations and more particularly to section 6302 thereof which prescribes the factors that are to be considered in determining whether a particular individual primarily fulfills the responsibility for the care and upbringing of a qualified dependant. ... However, an analysis of those factors should not preclude a consideration of numerical or measurable factors, in particular the amount of time spent by each parent with the child. [49] The same dictionary defines the word “near,” when used as an adverb (which it is in the phrase “equal or near equal basis”), as meaning “1... to or at a short distance in space or time.... 2 closely.... 3... almost, nearly....”.Thus, in the statutory definition of the term “shared-custody parent,” the phrase “near equal” presumably means a short amount of time from being equal, closely equal, almost equal or nearly equal. [20]   At paragraph 51 of his Reasons, the Judge remarked that the expression “near equal” could not be restricted “to only a very slight variation from a 50%/50% split” but that, however, “the statutory provision does not encompass a very wide variation from equal residence.” [21]   The Judge then turned to a review of his Court’s decisions on point, namely: Brady v. ...

The factors in Rule 147(3) [of the General Procedure Rules] are the key considerations in the Court’s determination of costs awards as well as the quantum and in determining if the Court should move away from the Tariff; 6. ... The manner that the Tariff is referenced in Rule 147 [of the General Procedure Rules] indicates the insignificance of the Tariff in costs considerations. ... Consideration of Relevant Factors A. Result of the Proceedings [12] As I noted previously, the Appellant was successful on all issues before the Court. ...

  [22]         Section 69 of the ITA provides for adjustments to be made when computing the proceeds of a disposition or an acquisition in the case of inadequate considerations. Section 69 reads as follows:   income tax act   Section 69: Inadequate considerations. ...