Search - consideration

No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. ...

Adagio agrees to pay Fremont as a consideration for the financial assistance provided a standby fee at the rate of 3% per annum on the daily outstanding balance of the Additional Loan for the period beginning August 8, 1986 and ending on the date the Additional Loan is retired by Adagio (the "Standby Fee"). ... The reward Fremont was to receive in consideration for the earlier advances, was interest, financing fees and primarily shares in Adagio. ...

It was quite obvious that that was a major part of the consideration and they were advised that they would be considered to be in insurable employment. [10] This is not a criticism of Mr. ... In other words, did the Minister err in some principle of law, did he misconstrue appropriate facts, did he consider facts which were inappropriate, did he not take into consideration appropriate facts, did he misinterpret the facts before him, did he act unjustly or did he act non-judicially, to such an extent that the Court should open the matter up and look at it from a trial de novo situation? ...

It in fact covers any consideration or benefit having a pecuniary value which the employer is required to provide to the employee in return for his performance of work. ... Like the Unemployment Insurance Act, the Act respecting the Quebec Pension Plan and the Act respecting the Régie de l'assurance-maladie du Québec clearly provide that the employer's obligation respecting contributions arises in consideration of an employee's performance of work during a period of time and is based on that employee's remuneration, not on the payment of his wages. ...

In arriving at his decision the respondent Minister of National Revenue relied inter alia on the following facts: (a) the payer is governed by the Cooperatives Act; (A) (b) the payer was incorporated on June 8, 1995; (A) (c) the payer operates a business to give its members work in construction, renovation and all other related spheres of activity; (A) (d) the appellant transferred the contract for the St-Narcisse school to the payer; (D) (e) the appellant received a payment of $5,520.02 as professional fees in consideration for the St-Narcisse school contract; (D) (f) the appellant transferred equipment worth $20,000 to the payer; (DAD) (g) the appellant received two payments totalling $3,680 in consideration for part of the equipment; (D) (h) in addition to the aforementioned payments the appellant received payments for his salary and to reimburse expenses; (D) (i) the board of directors consisted of five directors; (A) (j) the appellant was the chairman and was also a member of the bidding committee; (A) (k) although the directors were not paid the appellant received part of his pay as president and another part as a worker; (D) (l) the appellant provided services chiefly at the St-Narcisse school site; (DAD) (m) the appellant was in charge of the St-Narcisse school site; (ASA) (n) the payer did not supervise the hours of workers on this site; (D) (o) the appellant had special status in the cooperative; (NK) (p) the board of directors controlled the result of the work done; (A) (q) the appellant:- brought the St-Narcisse school contract with him when he came to the payer;- brought $20,000 in assets, out of a total of $30,000, with him when he came to the payer;- was chairman of the payer's board of directors;- was a member of the bidding committee; and- arranged to be paid as a director or as a worker as he saw fit; (D) (r) no contract of service existed between the appellant and the payer during the period at issue. ...

The amount of $700 is calculated in consideration of the maximum payable, given that there were two motion hearings and that it is not necessary to tax the costs, and of the amount of the costs awarded in the order dated April 4, 2013. ... Even though it is a consideration in such motion, prejudice is not required for a case to be dismissed. ...

This is one of the specifically enumerated considerations in Rule 147 of the Tax Court of Canada Rules (General Procedure). [8]              This Court has the power to award costs where a party abuses the processes of the Court. ... Canada, 2015 FCA 210, which excludes appellants who are only appealing penalties from being subject to the same considerations if they are abusing process as any other party before the Court. [9]              This is not a case where an appellant was only wasting the time of the Court and the Respondent. ...

The Federal Court of Appeal has said exactly that on several occasions, none more clearly than in the case of MNR v Minuteman Press, (1988) 88 DTC 6278 where the Court held: …Once it has been determined that no application was made for an extension of time to appeal within the one year limit, the question of whether or not it would be just and equitable to grant an extension of time  to appeal does not arise. [10]         If a taxpayer has not brought an application to extend within the one year grace period, the Court has no jurisdiction to move to a consideration of the subsequent four pronged evidentiary factors for exercising its discretion. [11]         Therefore, in considering any application to extend the time to file a Notice of Appeal or a Notice of Objection, the first issue is: factually did the taxpayer effectively or constructively file an application to extend within the one year grace period. ... Buried within this mound of papers were the 2012 Notice of Assessment dated June 10, 2013 and the 2011 Notice of Confirmation dated June 21, 2013, the subject of these applications. [17]         Although no Notice of Objection for 2012, no Notice of Appeal for 2011 or any application to extend within the one year grace period may be found for either 2011 or 2012, there were nonetheless certain documents which Thomas asserts constructively comprise those necessary documents or at least demand a standstill of the one year grace period time count. [18]         The nature, chronology and dates of the documents are relevant to such consideration, bearing in mind that the critical final expiration filing dates for the “one year grace period” for extension applications are September 19, 2014 for the 2011 appeal and April 30, 2015 for the 2012 objection. ...

The critical issue in this appeal is to determine who, for the purpose of that provision, meets the definition of “eligible individual”. [29]         Prior to the disputed period, it is apparent that the Appellant had the benefit of the presumption set out in paragraph 122.6 eligible individual (f) in that both A and C resided with her and, as the female parent, she was presumed to be the parent who primarily fulfilled the responsibility for their care and upbringing. [30]         However, the presumption noted above is rebuttable in two important instances i) where both parents meet the definition of “shared-custody parents” or where ii) another parent has filed an application claiming to be the primary caregiver (subsection 6301(1)(d) of the Income Tax Regulations (the “ITR”)). [31]         Section 122.6 contains a number of key definitions as follows: “ 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;... 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; " shared-custody parent " in respect of a qualified dependent [sic] 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 partners 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. [32]         Where the court is satisfied that two parents meet the definition of “shared‑custody parents” including the requirement that the children reside with both “on an equal or near equal basis” and that both parents “primarily fulfil the responsibility for the care and upbringing” of the children when they are residing with them, the CCTB will be shared equally between them, subject to their adjusted income. ... For a trial Judge to say “I believe him because I judge him to be telling the truth'”, is to come to a conclusion on consideration of only half the problem. ...

Respondent’s position [13]         The respondent agrees that the Court may take new facts into account, but points out that these new facts do not in any way change the reasonableness of the Minister’s decision. [14]         The respondent maintains that the appellant’s employment with the payor did not constitute insurable employment during the periods in question because, given all the circumstances, including the facts identified above, it was not reasonable to conclude that the appellant and the payor would have concluded a similar employment contract had they been dealing with each other at arm’s length within the meaning of subsections 5(2) and 5(3) of the EIA. [15]         In this regard, the respondent maintains that the appellant was not being paid enough, given that before reporting to the worksite in the morning, he took the company truck to pick up workers and equipment, that he managed projects and worksite security, and that he made important decisions on behalf of the company. [16]         The respondent also maintains that the appellant is not credible because his testimony during the hearing contradicts the version he gave to the decision-making officer. [17]         The respondent also said that the fact that the appellant has an interest in the outcome of the proceedings is something to take into consideration when assessing his credibility. [18]         The respondent maintains that the Court must draw a negative inference from the fact that Lynn Dubois was not called to testify because the appellant bears the burden of presenting sufficient evidence to refute the Minister’s assumptions. ... Canada, [6] my colleague, Justice Miller, provides a good summary of the elements that a judge can take into consideration when assessing a witness’s credibility: In assessing credibility I can consider inconsistencies or weaknesses in the evidence of witnesses, including internal inconsistencies (that is, whether the testimony changed while on the stand or from that given at discovery), prior inconsistent statements, and external inconsistencies (that is, whether the evidence of the witness is inconsistent with independent evidence which has been accepted by me). ...