Search - consideration

The schedule accompanying the letter from Chrysler Credit to Cariboo set out the breakdown of the $204,124.52 and it included the sum of $55,010.13 which is substantially the amount assessed against the appellants under section 323 of the Excise Tax Act. [28]          Ultimately Chrysler Credit was paid the amount remaining in the lawyers' trust account. [29]          I begin the analysis of the liability of the appellants under the Income Tax Act and the Excise Tax Act with a consideration of their respective positions in the company. ... He was a part owner. [30]          I turn then to a consideration of whether the appellants have exercised the degree of care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances. [31]          There have been numerous cases involving directors' liability under section 323 of the Excise Tax Act and section 227.1 of the Income Tax Act. ...

In assessing the appellant, the Minister relied on the following findings and assumptions of fact: (a)            the appellant is a GST registrant; (b)            the appellant was audited under the Excise Tax Act; (c)            during the period from June 1, 1995, to December 31, 1997, the appellant operated a catering business; (d)            during the audit, it was found that supplies made to persons and/or businesses working in the field of day care in schools were not taxed by the appellant; (e)            in light of this fact, the respondent's representative reviewed the supplies made to the persons and/or businesses referred to in subparagraph (d); (f)             an examination of the available documents, including the invoices issued, revealed the following facts:-                the consideration paid by the customer was based on a per-person or per-serving charge;-                the meals were prepared to the customer's specification;-                the meals were delivered to the place designated by the customer;-                the appellant was known (advertised) as a caterer; (g)            following discussions with the appellant, and taking the above-mentioned facts into account, the respondent's representative determined that the supplies made to the persons and/or businesses referred to in subparagraph (d) were exempt supplies of catering services; (h)            after reviewing the data entered in the accounting records, the respondent's representative determined the taxes that should have been collected and the ITCs that should have been claimed, as shown in greater detail in the attached schedule; (i)             the respondent's representative thus found that the appellant had not remitted $4,789.07 in GST and had wrongfully claimed $6,479.17 in ITCs in relation to exempt supplies, as can be seen from the following table: PERIOD GROUND(S) AMOUNT 95-06-01 to 95-12-31 Uncollected GST $1,732.47 ITCs claimed on purchases for the production of exempt supplies $1,313.13 96-01-01 to 96-12-31 Uncollected GST $1,061.68 ITCs claimed on purchases for the production of exempt supplies $3,310.74 97-01-01 to 97-12-31 Uncollected GST $1,994.92 ITCs claimed on purchases for the production of exempt supplies $1,855.30 SCHEDULE COMPUTATION OF TAXES TO BE REMITTED 01-01-98 to 30-09-98 01-01-97 to 31-12-97 01-01-96 to 31-12-96 01-09-94 to 31-12-95 TOTAL QST AND GST DISCREPANCY TOTAL SALES $147,262 $206,693 $208,095 $326,813 ELEM. ... When the food or beverages are supplied to the customer it is in a form that can be consumed either immediately or after it is warmed; ·                     The consideration paid by the customer is based on a per person or per serving charge; ·                     The food or beverages are delivered to or on behalf of the customer; ·                     The food or beverages are supplied with some or all of the necessary amenities for either serving or consuming the food or beverages. [28]          The circumstances of this case are consistent with those guidelines. ...

I shall come back to the matter of this form shortly. [12]          In all there are 17 vehicles on which the Appellant did not collect GST because it considered them to be export sales: in 1996 there were two vehicles which the Appellant claims were exported to the United States and two to Germany, having a total consideration of US$29,800, which translates to C$40,528; in 1997, three vehicles to the United States aggregating US$28,500 or C$39,330; in 1998, ten vehicles to the United States for an aggregate consideration of US$56,300 or C$83,324. ...

Lortie took into consideration all sorts of assumptions with negative impact on the value of the immovables at issue; I refer in particular to the following: (1)      the lack of interest in the site; (2)      the possibility of a very high water table; (3)      problem soil: clay and sand; (4)      the servitude prohibiting access; (5)      the prohibitive infrastructure costs; (6)      the difficulty of developing due to the fact that there were a number of owners, thus making it difficult to achieve any consensus on establishing and respecting infrastructure; (7)      the numerous by-law restrictions. [44]     There was no basis in the evidence adduced for attributing these defects, faults or shortcomings to the appellant's lots. ... Determining actual value involves research that must lead to a conclusion that must stem from the consideration of all available elements. ...

The tests mentioned in cases in other courts are of course helpful but other factors should also be emphasized, including the timeliness of the motion to amend or withdraw, the extent to which the proposed amendments would delay the expeditious trial of the matter, the extent to which a position take originally by one party has led another party to follow a course of action in the litigation which it would be difficult or impossible to alter and whether the amendments sought will facilitate the court's consideration of the true substance of the dispute on its merits. ... Ultimately it boils down to a consideration of simple fairness, common sense and the interest that the courts have that justice be done. [13]     This passage was quoted with approval in The Queen v. ...

THIS CONTRACT IS MADE: BETWEEN LESSEE                                     Produits forestiers Alliance inc.                                     200 De Quen Street                                     Dolbeau-Mistassini, Quebec                                     G8M 1M1 AND LESSOR                                     Forestiers BerMan inc.                                     1913 Sacré-Coeur Boulevard                                     Dolbeau, Quebec                                     G8L 2A5                                     Machine number: 2280                                     Representative(s): Emmanuel Labrecque 1)     In consideration of the payments referred to hereunder, the LESSOR agrees to render personal services to the LESSEE using the movable described below, in accordance with the following terms and conditions. ... Contract signed in duplicate this 05-05-99           .________________________            ______________________ LESSOR                                                           LESSEE THIS CONTRACT IS MADE: BETWEEN LESSEE                                     Produits forestiers Alliance inc.                                     200 De Quen Street                                     Dolbeau-Mistassini, Quebec                                     G8L 5M8 AND LESSOR                                     Forestiers BerMan inc.                                     1913 Sacré-Coeur Boulevard                                     Dolbeau, Quebec                                     G8L 2A5                                     Machine number: 2703                                     Representative(s): Emmanuel Labrecque 1)     In consideration of the payments referred to hereunder, the LESSOR agrees to render personal services to the LESSEE using the movable described below, in accordance with the following terms and conditions. ...

The parties shall modify the child support payment and Section 7 expenses, if applicable, in accordance with updated disclosure.   13.2     In consideration for a retroactive claim for child and spousal support, the Husband shall provide the Wife with a $5,000.00 lump sum settlement, which sum combines retroactive child and spousal support arising since the date of separation. ... Full consideration must be given to these last two factors (see Payne, at p. 263). ...

In rendering his decision, the Minister relied on sections 5(2)(i) and 5(3) of the Act, taking into consideration the following presumptions of fact at paragraph 6 of the Reply to the Notice of Appeal submitted for Michaël Dumont's appeal:   [translation] (a)   the payor is the owner of a business she registered on August 27, 2004; (admitted)   (b)   the payor acquired the business from the trustee following the bankruptcy of the bar's former owner; (admitted)   (c)   the payor's business is a bar offering drink and tanning services (tanning bed); (admitted)   (d)    the business is located in a 2-storey building; the bar is on the main floor and there are 4 rooms upstairs including one in which a tanning bed was installed; (admitted, except there were 5 rooms upstairs)   (e)     from the time the business began operating, the payor did not rent any of the rooms; (admitted, until renovations in August 2005)   (f)      the payor took out a loan of $62,000 to acquire the business, which was endorsed by Gilles Dumont, the appellant's father; (admitted)   (g)     in 2004, there were up to 7 employees listed on the payor's record of wages; (no knowledge)   (h)     except for the period in question (12  days), the worker was not listed on the payor's record of wages; (admitted)   (i)       the worker performed services for another employer and, following the loss of his job, found he did not have enough hours to qualify for unemployment benefits; (denied as written)   (j)      the payor claims to have hired the appellant and given him duties so he could accumulate the missing insurable hours; (denied)   (k)    according to the payor's version, the appellant performed the following work:  -     installed a counter in the kitchen,-     fixed up and painted the second floor in the rooms, bathroom and tanning room,-     removed a carpet, brought up cases of beer from the basement, filed old items, put things away in the garage and ran errands;       (admitted, with, in addition, the cleaning of a commercial stove)   (l)       the appellant stated that he did many tasks and noted that he had spent a good 20 hours (of a total of 80) cleaning a propane stove, whereas the payor did not mention it at all; (admitted)   (m)    the payor did not offer meals at the bar or rent rooms on the 2nd floor; (denied)   (n)     the payor stated that the worker worked around 40 hours a week, whereas the worker stated he worked around 60 hours a week for the 2 weeks of the period in question; (admitted)   (o)    all the payor's employees had to record their hours of work but the appellant did not; (admitted because the worker was not paid hourly)   (p)    in 2005, the payor paid herself a salary (deduction) of $450 a week except during the 2 weeks the appellant allegedly worked; (no knowledge)   (q)    the payor issued two paycheques in the appellant's name for $469.25 and $489.44 that were cancelled and corrected to $19.25 and $39.44 after deducting $450 per week from the initial cheques; (admitted)   (r)      the payor claimed to have deducted $450 per week from the initial cheques in the appellant's name because she gave him two $450 advances, but there was no evidence to this end; (admitted)   (s)     the payor stated that she did not take a salary during those two weeks because she could not afford to pay two $450 salaries for the two weeks of the period in question; (no knowledge)   (t)      the appellant stated that he was not involved in the payor's business, while he guaranteed a leasing agreement for the purchase of the tanning bed and in 2004 and 2005, he signed the majority of the invoices for the payor's suppliers; (denied as written, not the majority, ex. beer, alcohol from the S.A.Q.)   ... Cheques No. 404 and No. 408 were not submitted to evidence and were replaced by two small cheques to take into consideration two prior advances of $450 granted to the worker. ...

Q         So you essentially weighed the considerations and chose not to appeal, is that right? ...   [15]          Balanced against this consideration, however, is the fact that the Applicant was ably represented by counsel throughout the lengthy period of negotiations leading up to and including the signing of the Waiver. ...

A practical consideration in that case was that the grandmother was financially responsible for the child. [25]     The Campbell decision also illustrates a tendency of not being overly fixated on the roof under which the child lives. ... If the child resides with the mother for most of the month but not on the first day, there may be cases where consideration of the roof under which the child lives on that first day is not determinative. ...