Search - consideration

However, it differs somewhat from a consideration of the possible application of issue estoppel in that the consideration is focused on preserving the integrity of the adjudicative process more so than on the status, motive or rights of the parties.   30        Relitigation should be avoided unless it is in fact necessary to enhance the credibility and effectiveness of the adjudicative process. ...

James Fyshe Counsel for the Respondent: Gordon Bourgard__________________________________________________________________   ORDER Upon consideration of a motion by the Respondent for an Order:   1.       ... In the Appellants’ submissions, counsel wrote:   The term “commercial mainstream” had been understood to be a consideration which prevents Indians from securing a competitive advantage in the commercial mainstream with respect to (sic) other taxpayers. ...

The Appellant stated that while the Guidelines do not legally bind the Minister to the assessment, they are nonetheless a relevant consideration buttressed by the Honour of the Crown arguments because factually the Crown publishes these Guidelines and related forms exclusively for use by native taxpayers applying for exemption. ... Such Guidelines in the context of section 87 represent new facts which invite the consideration of the Court. ...

The impetus to settle is a mechanism which enables a plaintiff to make a serious offer respecting his or her estimate of the value of the claim which will require the defendant to give early (that is, when the offer is served) and careful consideration to the merits of the case. ...   [12]   Otherwise, both parties to every appeal would routinely propose that the appeal be allowed or withdrawn without costs, with a view to supporting a claim for increased costs in the event they succeed, and thereby defeating the ordinary rules, practices and considerations applicable to the awarding of costs ...

Analysis   [9]              There are some important definitions to be familiar with, all of which are found in section 122.6 of the Income Tax Act (the " Act "):   …   " eligible individual " in respect of a  qualified dependant  at any time means a  person  who at that time   (a)        resides with the  qualified dependant,   (b)                is a parent of the  qualified dependant  who   (i)                  is the parent who primarily fulfils the responsibility for the care and upbringing of the  qualified dependant  and who is not a  shared-custody parent  in respect of the  qualified dependant, or   (ii)        is a  shared-custody parent  in respect of the  qualified dependant, (c)                 is resident in Canada or, where the  person  is the  cohabiting spouse or common-law partner  of a  person  who is deemed under subsection  250(1)  to be resident in Canada throughout the taxation year that includes that time, was resident in Canada in any preceding taxation year,   (d)                is not described in paragraph  149(1)(a)  or  149(1)(b), and     (e)                 is, or whose  cohabiting spouse or common-law partner  is, a Canadian citizen or a  person  who   (i)         is a permanent resident within the meaning of subsection  2(1)  of the Immigration and Refugee Protection Act,   (ii)        is a temporary resident within the meaning of the Immigration and Refugee Protection Act, who was resident in Canada throughout the 18 month period preceding that time, or   (iii)       is a protected  person  within the meaning of the Immigration and Refugee Protection Act,   (iv)       was determined before that time to be a member of a class defined in the Humanitarian Designated Classes Regulations made under the Immigration Act,   and for the purposes of this definition,   (f)        where the  qualified dependant  resides with the dependant’s female parent, the parent who primarily fulfils the responsibility for the care and upbringing of the  qualified dependant  is presumed to be the female parent,   (g)        the presumption referred to in paragraph  122.6   eligible individual  (f) does not apply in  prescribed  circumstances, and   (h)        prescribed  factors shall be considered in determining what constitutes care and upbringing;   …   " qualified dependant " at any time means a   person   who at that time   (a)        has not attained the age of 18 years,   (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   (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;               …   " shared-custody parent " in respect of a qualified dependent 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 (a)        are not at that time cohabitating spouses or  common-law partner s of each other, (b)        reside with the  qualified dependant  on an equal or near equal basis, and (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 ... This comes down to a consideration of whether each of them primarily fulfilled the responsibility for the care and upbringing of their daughter when the daughter was residing with each of them. ...

This legislative provision was the subject of consideration by the Supreme Court of Canada, in The Queen v Bronfman Trust 87 D.T.C. 5059, where Chief Justice Dickson (as he then was) assessed the purpose of the provision as follows, at page 5064: It is perhaps otiose to note at the outset that in the absence of a provision such as s. 20(1)(c) specifically authorizing the deduction from income of interest payments in certain circumstances, no such deductions could generally be taken by the taxpayer.       ... ... (Emphasis is mine) Traps-Prairie Pipelines Ltd v M.N.R, 70 DTC 6351 In its consideration of the Trans-Prairie case, the Supreme Court of Canada, in Bronfman Trust, did not go farther than to agree to the fact that in that case "the money previously subscribed by preferred shareholders had been used by the company for the purpose of earning income from the business" 3 and to find "perfectly correct in so far as it goes" the proposition "that it is the current use and not the original use of borrowed money that determines eligibility for a deduction" 4. ...

Although there is ample authority that delay can be a basis for denying prerogative relief, it is not appropriate to deal with that issue in isolation to the many other considerations which bear on the granting of such relief. ... No. 601 in the following passage at paragraphs 23-24: Often the considerations affecting the exercise of discretion will require an appreciation of the circumstances in which the motion arises and of the relief sought. ...

In addition, the sale of Tee Vee US involved consideration in five aspects: Multicreations received $50,000 in cash; Global indemnified the purchaser for Tee Vee US"s debt in excess of $700,000; Global received the Broadcast Rights referred to in paragraph 12 of the Agreed Partial Statement of Facts quoted above; in return for a payment of $200,000 from Global to Tee Vee US, Global received an assignment of manufacturing, advertising and distribution rights held by Tee Vee US under an agreement with ABC Records; and by virtue of a consulting agreement, Multicreations would receive a share of Tee Vee US"s profits for 20 years. ... While it is true that consideration in various forms was exchanged to close the sale, there is no evidence that the $1,365,676.00 debt owed by Tee Vee US to Global was paid. ...

. 'Arbitrary' in this context is defined in the Staffing Program as: In an unreasonable manner, done capriciously; not done or acting according to reason or judgment; not based on rationale, on established policy; not the result of a reasoning applied to relevant considerations; discriminatory (i.e. difference of treatment or denial of normal privileges to persons because of their race, age, sex, nationality, religion, or union affiliation. ... The Independent Third Party Reviewer concluded that the evidence demonstrated "a pattern of conduct and decision-making which was not based upon sound reasoning or relevant considerations and can at best be categorized as arbitrary". ...

Corden informed the applicant that his application would receive no further consideration he agreed to meet with the applicant. ... The court may intervene and set aside the discretionary decision under review only if that decision was made in bad faith, if its author clearly ignored some relevant facts or took into consideration irrelevant facts or if the decision is contrary to law. [16]            Accordingly, this Court cannot interfere with the Minister's decision unless a reviewable error was committed. [17]            It is my view, however, that the respondent breached the duty of fairness when it broke its own internal rules as to the composition of the second level appeal panel. [18]            The respondent contends that although Mr. ...