Search - consideration

Reconsideration of Application for Leave to Appeal 73 (1) There shall be no reconsideration of an application for leave to appeal unless there are exceedingly rare circumstances in the case that warrant consideration by the Court. […] Réexamen de la demande d’autorisation d’appel 73 (1) Aucune demande d’autorisation d’appel ne peut faire l’objet d’un réexamen sauf si des circonstances extrêmement rares le justifient. […] (3) The motion for reconsideration must be bound and consist of the following, in the following order: (a) […]; (b) an affidavit setting out the exceedingly rare circumstances in the case that warrant consideration by the Court and an explanation of why the issue was not previously raised; (c) […] and (d) […]. (3) La requête en réexamen est présentée sous forme reliée et comporte, dans l’ordre suivant a) […]; b) un affidavit exposant les circonstances extrêmement rares qui justifient le réexamen et expliquant pourquoi la question n’a pas été soulevée auparavant; c) […]; d) […]. (4) The Registrar shall refuse to accept a motion for reconsideration that includes an affidavit that does not set out exceedingly rare circumstances as required by paragraph (3)(b). (4) Si l’affidavit n’expose pas les circonstances extrêmement rares exigées à l’alinéa (3)b), le registraire refuse la requête. ... The salient effect of the amendment is that the amended, post- Stubicar SCC Rule 73(4) directs the Registrar through imperative language to refuse to accept a motion for reconsideration for filing if the affidavit submitted does not set out the exceedingly rare circumstances that warrant consideration by the Court. ...

Those operative “transactional” documents common to the donations are as follows: [2] a) an “Information Sheet” containing critical personal information about the participant disclosing the amount of the cash payment that would be made to one of the list of Charities; b) an “Application for Consideration as a Capital Beneficiary of the Global Learning Trust (2004)” (the “Application”) requesting that the participant be approved as a capital beneficiary of the Trust and, if so approved, that the participant receive a distribution of properties in the nature of educational courseware with a specified monetary value; c) “Direction One”, authorizing Escrowagent: to deliver the Application to the trustee of the Trust, and also arrange for the delivery of the Deed of Gift of Property, to date or amend the date of certain documents; and, to arrange for the delivery of charitable donation receipts; d) “Direction Two”, authorizing Escrowagent: to arrange for the delivery of the Deed of Gift of cash together with the cheque; to date or amend the date of certain documents; and, to arrange for the delivery of charitable donation receipts; e) a “Deed of Gift of Property” addressed to one of the Charities stating that the Appellants are the legal and beneficial owner in possession and control of the educational courseware disclosed; f) a “Deed of Gift” addressed to one of the Charities for a sum to be completed; g) an acknowledgment to obtain independent legal advice and waiver and release of GLGI and other related entities (“Waiver”); h) a cheque to the Escrowagent; and, i) a cheque payable to a charity, which was post-dated to four days after the date of the Application, (the “Cash Donation”). ... No gifts were made [10] On the first issue of the cash and in-kind donations as gifts under section 118.1 of the Act, Justice Pizzitelli outlined the necessary elements of a gift, with reference to Friedberg v R. [5] Specifically, Justice Pizzitelli found that there were three requisite elements of a gift: a) there must be a voluntary transfer of property; b) the property transferred must be owned by the donor; and c) there must be no benefit or consideration to the donor, which has been taken to mean that the donor had “donative intent”. [6] [11] After reviewing the marketing of the scheme and the makeup of the transactional documents, Justice Pizzitelli concluded that a person participating in the GLGI program expected to profit from, be enriched or not be impoverished by participation and thus did not have the requisite donative intent to make a gift of cash or licenses. [7] GLGI program participants knew that their cheque for the cash contribution would not be cashed until the participant was notified that they were accepted as capital beneficiaries of the Trust and would thus be receiving the license distribution for further gifting. [8] Trust not valid [12] Regarding ownership of the software licenses, Justice Pizzitelli also found that the taxpayers could not have owned the licenses, as they could not have identified the number and type of such licenses. [9] The taxpayers would only be aware of the purported value of the software licenses they were to receive and could not identify the specific property they purported to own. [10] Therefore, the taxpayers could not voluntarily give a property they did not know of or had no way of specifically identifying. [11] [13] Justice Pizzitelli found the Trust failed for lack of certainty of objects and was not a valid trust. [12] Certainty of objects did not exist because the class of beneficiaries was too wide to form any class and the Trustee could not be sure who was in or out of the class of beneficiaries at any time. [13] The Trustee had no access to confidential tax information on the taxpayers, and the class of capital beneficiaries changed from year to year. [14] [14] Justice Pizziteli also concluded, even if the Trust were valid, the taxpayers could not have received ownership and transfer of the licences from the Trust because there was no proper distribution of capital property. [15] The Trustee did not exercise its obligation to determine the amount of property to be distributed to any capital beneficiary or even determine who the capital beneficiaries were and was in violation of its duties under the Trust Deed and its statutory and common law duties. [16] Because of the long-established principle that the failure of the required exercise of discretion of a trustee renders the decisions ineffective, the taxpayers were not properly approved capital beneficiaries nor was there a proper distribution of property of the Trust. [17] Valuation of the licenses [15] Mariano also dealt with the valuation of the licenses. ... Those elements of a gift are that: “1. there must be a voluntary transfer of property; 2. the property transferred must be owned by the donor; and 3. there must be no benefit or consideration to the donor, which element has, in later jurisprudence, been taken to mean that the donor must have had “donative intent”.” [24] [21] Regarding element 3, Justice Pizzitelli found that having donative intent requires the donor intending to impoverish themselves or “grow poorer” from the gift. [25] [22] Justice Pizzitelli concluded the issue of whether the taxpayer ever even made a gift (due to a lack of donative intent) by stating: [49] In the end, I cannot see how any person participating in such a scheme, regardless of whether such person had an honest belief in the value of the Licences he expected to receive or not, can argue, based on the manner in which the scheme was marketed and in the makeup and integration of the Transactional Documents that deliver it, that he or she expected none other than to profit from, be enriched or not be impoverished by, such participation, and thus not have the requisite donative intent. […] [50] The Appellants did not have the donative intent to make the gifts of cash or Licences. [26] [23] Regarding the Malones’ intention to enrich the lives of Canadians, that point was also addressed by Justice Pizzitelli in Mariano: [27] The Appellants suggest that their separate gifts were motivated by their desire to help others in need. ...

Position of the Respondent [60] The Minister’s primary position was that none of the expenses incurred in connection with the Mary River Mine qualified as CEEs as they do not meet the Purpose Test described in paragraphs 66.1(6)(f) and (g). [61] The proposed amendments seek to clarify the Minister’s secondary position which is that the Appellant failed to produce sufficient documentation to demonstrate that the expenses allowed as current business expenses also qualified as CEEs. [62] The Respondent argues that there will be no injustice to the Appellant because the proposed amendments do not raise a fresh line of argument, but rather simply aim to accurately and fully reflect the secondary position taken by the Minister during the reassessment, determination and confirmation process. [63] The Respondent adds that the proposed amendments mirror allegations of facts and arguments that are already found in the Appellant’s Notice of Appeal. [64] The Respondent submits that the issue under appeal remains the same and that the proposed amendments will facilitate the Court’s consideration of the real question in controversy. [65] The Respondent argues that subsection 152(9) does not apply because the proposed amendments are not an alternative argument or basis for assessment as they involve the same provisions of the Act under which the expenses were denied. ... Significant consideration should be given to amendments that further the trial court’s ability to determine the questions in controversy (Pomeroy FCA, para 4); iv. ... Consideration should be given to whether the amendments will ensure clarity and certainty at trial (Pomeroy FCA, para 14). [70] In Polarsat Inc. v. ...

Imposition of goods and services tax — Subject to this Part, every recipient of an imported taxable supply shall pay to Her Majesty in right of Canada tax calculated at the rate of 7% on the value of the consideration for the imported taxable supply.   ... Imposition of goods and services tax — Subject to this Part, every recipient of an imported taxable supply shall pay to Her Majesty in right of Canada tax calculated at the rate of 6% on the value of the consideration for the imported taxable supply.  . . .         ...   [18]          Under section 218 of the ETA, the recipient of an imported taxable supply is required to pay tax on the value of the consideration for the supply. ...

Where s. (1) does not apply (2) Subsection 85.1(1) does not apply where (a) the vendor and purchaser were, immediately before the exchange, not dealing with each other at arm’s length (otherwise than because of a right referred to in paragraph 251(5)(b) that is a right of the purchaser to acquire the exchanged shares); (b) the vendor or persons with whom the vendor did not deal at arm’s length, or the vendor together with persons with whom the vendor did not deal at arm’s length, (i) controlled the purchaser, or (ii) beneficially owned shares of the capital stock of the purchaser having a fair market value of more than 50% of the fair market value of all of the outstanding shares of the capital stock of the purchaser,   immediately after the exchange; (c) the vendor and the purchaser have filed an election under subsection 85(1) or 85(2) with respect to the exchanged shares; (d) consideration other than shares of the particular class of the capital stock of the purchaser was received by the vendor for the exchanged shares, notwithstanding that the vendor may have disposed of shares of the capital stock of the acquired corporation (other than the exchanged shares) to the purchaser for consideration other than shares of one class of the capital stock of the purchaser; or     (e) the vendor (i) is a foreign affiliate of a taxpayer resident in Canada at the end of the taxation year of the vendor in which the exchange occurred, and   (ii) has included any portion of the gain or loss, otherwise determined, from the disposition of the exchanged shares in computing its foreign accrual property income for the taxation year of the vendor in which the exchange occurred.   ... The Vidéotron Board of Directors would approve the issue of subordinate shares of Vidéotron capital stock in consideration of the purchase of shares of a corporation controlled by the respondents; c.        ... Vidéotron then wound up and dissolved 8855, cancelling the convertible securities for no consideration. ...

These are considerations which appear to me to follow the reasoning of the Judicial Committee in Robinson v. ... There is no such discretionary statutory provision applicable to the case at bar, but apart from that consideration, there are two matters to be noted. ... That the considerations of public safety and security require that the utmost secrecy be maintained with respect to certain documents and information in relation thereto in the possession of the Crown has long been recognized. ...

With such considerations in mind I propose to deal with each individual item advanced by the respondent. ... I now proceed to a consideration of the items put forward as operating expenses incurred by her exclusively in the 1959 taxation year. ... There now remains for consideration the items put forward by the respondent for business expenses incurred by her in the 1960 taxation year with which she was not credited by the Minister in making the assessment for that year, but excluding these items which I have already considered as applicable in both taxation years under review. ...

The corporation, in consideration for the transfer of assets, issued him a promissory note in the sum of $89,226 and 156 Class “C” preferred shares with a par value of $1 per share and redeemable and retractable at $1,000 per share. ... There was never any consideration of the matter whether issuance of dividends would alter Dr. ... On a plain reading, the section will not be applicable where there exists no intention by the taxpayer to avoid receipt of funds in his hands by arranging payments to be made without adequate consideration to third persons. ...

The answer to the third and final question relating to the plaintiff's extensive dealings in farm properties requires, as counsel for the plaintiff submitted, a consideration, not of the overall multitude of purchases and sales but of each transaction, and a determination of the intention of the plaintiff at the time he acquired each of the properties. ... As already detailed in my consideration of the second question he then arranged the sale to Avery, effective January 2, 1981 for $365,000, of the two quarter sections he had purchased from his father and the two quarter sections comprising the Mews land, except 40 acres and a building from one of the Mews' quarter sections. ... Counsel for the plaintiff will prepare a draft judgment, which he will submit to counsel for the defendant for approval as to form, and will then submit the same to me for my consideration. ...

., 2004 FCA 158, 2004 CarswellNat 1163, where Cattanach J. stated that it is not for the Minister or the Court to substitute its judgment for what is reasonable but to conclude that no reasonable businessman would have agreed to pay such an amount, having regard only to business considerations. ... For this reason I preferred to consider the evidence before me, give the necessary weight and consideration the evidence deserved, and not open the hearing of the appeals to a formal process, more akin to an appeal under the General Procedure. My primary concern was to have the hearing of the appeals proceed in an Informal Procedure process reasonably and as “informally and expeditiously as the circumstances and consideration of fairness” permitted ...