Search - consideration

In determining what remedy I should grant in exercising the discretion given the court under subsection 24(1) of the Charter this is a practical consideration that must be taken into account in deciding whether I should limit the remedy to that specifically provided under subsection 24(2) of the Charter. ... Quite apart from the practical consideration that I mentioned above, and that, strictly speaking may, as a purely theoretical and academic matter, possibly be irrelevant, that vacating the assessments and excluding the evidence come to the same result, there are other considerations that impel me to conclude that the assessments should be vacated: (a) The mere fact that subsection 24(2) spells out one remedy that is available under subsection 24(1) where there is a Charter violation and that would, in the absence of any other remedy under section 24(1), be appropriate (as it certainly is here) does not exclude other remedies under subsection 24(1). ... It appears to be conceded that the assessments cannot be sustained without the use of the unconstitutionally obtained evidence and that if the assessments were referred back to the Minister of National Revenue for recon- sideration and reassessment on the basis that all evidence that was illegally obtained be excluded from the Minister’s consideration the Minister would have no evidence on which to base an assessment. ...

The number of cases dealing with its meaning appear to indicate that the phrase is incapable of precise definition and involves more of a consideration of a number of different factors, which might include gross income, net income, capital investment, cost flow, personal involvement, centre or work routine, occupational change and significant profitability. ... In seeking an answer, gross income, net income, capital investment, cash flow, personal involvement, and other factors may be relevant considerations. ... Bearing in mind the above considerations, the question in this case is therefore, has the appellant established on a balance of probabilities, that farming was a chief source of income in the taxation years 1986, 1987 and 1988? ...

Had a formal determination been made different considerations might apply. ... One consideration may point so Clearly that it dominates other and vaguer indications in the contrary direction. ... At pages 68-69 (D.T.C. 5063-64) Joyal, J. said: I also find in the considerations and factors outlined in the Moldowan case that they do not need all to be of equal value. ...

That decision, according to testimony at trial, was based in part upon the unacceptable nature of the log submitted and also by taking into consideration that the plaintiffs lived in an area without close access to grocery stores and other amenities and would therefore have to travel some distance by car for personal matters. ... I believe resolution of the issue presented by the taxpayers' appeal in relation to travelling expenses requires consideration of the application of subsection 20(10) relating to limited convention expenses which may be claimed, as well as the application of paragraph 18(a), the benefit of which the plaintiffs urge and the Minister denies. ... Yet that principle, it seems to me, does not preclude consideration of conduct from which, in an appropriate case, an agreement may be implied. ...

One consideration may point so clearly that it dominates other and vaguer indications in the contrary direction. ... In my submission the same considerations apply where we are dealing with a question whether an amount is laid out for the purpose of gaining or producing income. ...

The authorized capital of Melru was divided as follows [1]: 5,000 common voting shares, 5,000 common non-voting shares, 10,000 Class “A” shares, 30,000 Class “B” shares, 25,000 Class “C” shares, 25,000 Class “D” shares, 300,000 Class “E” shares, 5,000 Class “F’ shares, and 1,286 Class “G” shares, all without par value, provided that the shares shall not be issued for a consideration exceeding in amount or value in the aggregate the sum of $40,000. ... Just to understand correctly, what specific considerations went into the formulation of those amounts, $5,000 and $14,800? ... Moreover, in that case, the Court had before it for consideration, its recent judgment in McClurg in which Urie J.A. for the majority acknowledged at page 79, the four ingredients laid down in Fraser and first developed by Cattanach J. in Murphy v. ...

Secondary or subsidiary issues are a subset of the considerations which factor into the outcome, but which do not necessarily make or break the result. ... Furthermore, neither the novelty of the issues nor the case’s wider interest considerations merit a no costs order. ... I will accordingly award the Crown a lump sum in the amount of 20% of its fees, given the various considerations reviewed above, including the Crown resources devoted, important issues at stake, and CPRC’s success on certain issues raised. ...

The objective of the Stewart test, which was to reaffirm “pursuit of profit” as the decisive consideration in ascertaining the existence of a business, precludes the possibility that this test could be construed so as to require the recognition of a business in the face of evidence that establishes that profits are not being pursued. [40] Even if Stewart cannot be read as the Tax Court proposes, the Estate submits that the companion case to Stewart, Walls SCC, can, and indeed must. ... In holding that the partners were engaged in a business, the Court wrote (Walls SCC, para. 22): Although the respondents in this case were clearly motivated by tax considerations when they purchased their interests in the Partnership, this does not detract from the commercial nature of the storage park operation or its characterization as a source of income for the purposes of s. 9 of the Act. ... Likewise, the Federal Court of Appeal previously found that the partners’ decision to invest in the storage park operation was driven “in part” by favourable tax considerations (Walls FCA, para. 1, as cited in Walls SCC, para. 16). [48] Before concluding my analysis of Walls SCC, I note that the Supreme Court in that case cites its earlier decision in Backman v. ...

Analysis [51] The Defendant submits that this case meets the test for summary judgment: the case is so doubtful that it does not deserve consideration by a trier of fact at a future trial. ... Oddi, and trying to find a way to assist him in doing so. (2) Stage 2 of the Anns/Cooper test [83] Under the second stage of the Anns/Cooper test, it must be determined whether there are policy considerations outside the relationship of the parties that would negate a prima facie duty of care. Relevant policy considerations include whether the law already provides a remedy, and whether the recognition of a duty of care creates "the spectre of unlimited liability to an unlimited class” (Cooper at para 37). [84] I agree with the Defendant’s position that even if there were a prima facie duty of care, stage two residual policy reasons would negate it. ...

It is certainly extraordinary that a succession duty return dated November 14, 1956, even for a large estate, should after a first assessment on July 4, 1957 giving the value of property at $200,000, have this value increased by an assessment dated January 14, 1960 to $600,000, which figure was subsequently reduced by decision of the Minister dated August 31, 1964 to $525,000 and that the matter should only come to Court for trial in 1973, so after reaching a conclusion on the merits I will, if necessary, then give consideration to the question of interest. ... On the other hand, Mr Cadieux contended that in evaluating the property for succession duty purposes no sales after the date of death should be taken into consideration. ... However, the delay of 2V2 years until January 14, 1960 before the Minister decided to increase the valuation of the property to $600,000, was not explained but would appear to be motivated by the rapid increase of the value of the property in the interval as established by the sale price obtained by the executors for it in 1959, which increase in value was not, however, a factor which the Minister was entitled to take into consideration in establishing the value as of the date of death. ...