Search - consideration

À moins que le contrat n’ait été conclu en considération de ses qualités personnelles ou que cela ne soit incompatible avec la nature même du contrat, l’entrepreneur ou le prestataire de services peut s’adjoindre un tiers pour l’exécuter; il conserve néanmoins la direction et la responsabilité de l’exécution. ... Canada, 2009 FCA 47, [2009] 4 FCR 592 [Grimard] (paragraph 43) the Federal Court of Appeal stated that a court does not err in taking into consideration criteria used under the common law in analyzing the legal nature of a work relationship (i.e. ownership of tools, the chance of profit, the risk of loss, and integration into the business) in order to determine the existence of a relationship of subordination, regardless of the fact that the ruling must be made under Quebec civil law: When examined in isolation, these criteria are not necessarily determinative. ...

Paragraphs 21(1)(a) and (b) read as follows: 21. (1) Where as a result of a transaction occurring after 1971 an amount (in this section referred to as the “actual amount") has become payable to a taxpayer in respect of a business carried on by him throughout the period commencing January 1, 1972 and ending immediately after the transaction occurred, for the purposes of section 14 of the amended Act the amount that has become so payable to him shall be deemed to be the aggregate of (a) an amount equal to a percentage, equal to 40% plus the percentage (not exceeding 60%) obtained when 5% is multiplied by the number of full calendar years ending in the period and before the transaction occurred, of the amount, if any, by which the actual amount exceeds the portion thereof referred to in subparagraph (b)(i), and an amount equal to the lesser of (i) the percentage, described in paragraph (a), of such portion, if any, of the actual amount as may reasonably be considered as being the consideration received by him for the disposition of, or for allowing the expiry of, a government right, and (ii) the amount, if any, by which the portion described in subparagraph (i) exceeds the greater of (A) the aggregate of all amounts each of which is an outlay or expenditure, made or incurred by the taxpayer as a result of a transaction occurring before 1972 for the purpose of acquiring the government right, or the taxpayer's original right in respect of the government right, to the extent that the outlay or expenditure was not otherwise deducted in computing the income of the taxpayer for any taxation year and would, if made or incurred by him as a result of a transaction occurring after 1971, be an eligible capital expenditure of the taxpayer, and (B) the fair market value to the taxpayer as at December 31, 1971 of the taxpayer's specified right in respect of the government right, if no outlay or expenditure was made or incurred by the taxpayer for the purpose of acquiring the right or, if an outlay or expenditure was made or incurred, if that outlay or expenditure would have been an eligible capital expenditure of the taxpayer if it had been made or incurred as a result of a a transaction occurring after 1971. 3.04.4 Under paragraph 21(3)(a) I.T.A.R., a government right is defined as follows: 21. (3) In this section, (a) a "government right" of a taxpayer means a right or licence (i) that enables the taxpayer to carry on a business activity in accordance with a law of Canada or of a province or Canadian municipality, to an extent to which he would otherwise be unable to carry it on in accordance therewith, (ii) that was granted or issued by Her Majesty in right of Canada or a province or a Canadian municipality, or by a department, board, agency or any other body authorized by or pursuant to a law of Canada, a province or a Canadian municipality to grant or issue such a right or licence, and (iii) that was acquired by the taxpayer (A) as a result of a transaction occurring before 1972, or (B) at a particular time for the purpose of effecting the continuation, without interruption, of rights that are substantially similar to the rights that the taxpayer had under a government right held by him before the particular time; The respondent based his argument that the milk quota is a government right on the fact that it is covered by the Farm Products Marketing Act, R.S.Q. 1977, c. ... I am inclined to think that in a case of this kind, that is where the balance sheets are used to determine income, the accounting system used by the taxpayer (cash basis accounting or accrual basis accounting) must be taken into consideration. ...

However, the fair market value of the herd inventory on December 31, 1971, to the amount of $24,290, was taken into consideration thus diminishing the appellant's income. 2. ... After referring to many cases, he added at pages 548-49: These cases are, of course, constitutional and as I have said there may be special considerations in a constitutional case. ...

After consideration, I am of the opinion that neither the provisions of subsection (1) of section 8 nor the provisions of section 5(a) of the Income Tax Act are applicable in the circumstances disclosed by the evidence in this appeal. ... He went on on the same page: In any event, as far as the second round of waivers are concerned, they were expressed to be settlements negotiated by a borrower with its lender under the terms of which immediate payment of a large amount of principal was to be made in consideration of interest being cancelled. ...

In my view, the recommendation can only be followed with some reservations, taking into consideration the reasons preventing the taxpayer from not [sic] presenting direct evidence with supporting documentation, as for example its being destroyed by fire. ... This personal participation by Mr Abelson must be taken into consideration by the Court, as it prevents the best evidence being produced and the consequences of this must be borne by him. ...

Negotiations with respect to the ultimate price to be paid by the expropriating authority were commenced and were not completed until 1979; (iii) At the time of expropriation (1974), the right to extract the gravel had been assigned to a local corporation; (iv) On June 20, 1978, Ontario Hydro paid to the taxpayer an advance of $36,756; (v) Negotiations were completed in 1979 and the taxpayer executed a release in favour of Ontario Hydro in which the total consideration for the “interests of the Grantor in the land expropriated or injuriously affected by the said expropriation and for all damages resulting therefrom’’ was stated to $89,295; (vi) On July 13, 1979, the taxpayer received cheques from Ontario Hydro, totalling $75,758.17. ... Except in “exceptional circumstances” the value of topsoil, sand and gravel, standing timber or growing crops will be taken into consideration in determining market value, and there can be no recovery for them valued separately as a merchantable product and in addition to the value of the land. ...

On the second page one can read: In closing I wish to thank you for the opportunity to meet and discuss this proposed Development with you and also for the opportunity to have it made available at this time for consideration and discussion by the Members of the Planning Board. ... The main paragraph of this letter reads as follows:... advising us of the consideration at meetings and the approval in principle given by the Brantford Township Planning Board to our proposal for estate lots and golf course development in the Township of Brantford area as described on our preliminary plan drawing. ...

In the instance of a professional employee it follows that detailed control as to the manner in which work shall be done is minimal but the material consideration is that the right of control exists even though it need not be exercised. (19) In McPherson v MNR, NR 91 — March 24, 1976, 8, Cattanach, J commented with some more details on this idea. ... Detailed control over a professional employee as to the manner in which work is done is necessarily minimal but the material consideration is that the right of control exists even though it is sometimes impossible to exercise and is rarely needed to be exercised. (20) It is frequently referred to study, La responsabilité civile délictuelle (Montreal, PUM 1973, 227, no 338), Professor Jean-Louis Baudoin expressed his view as follows: Dans la situation actuelle de la jurisprudence il convient d’être prudent et de ne pas nécessairement conclure à l’inexistence d’une relation préposé — commettant entre l’hôpital et le personnel médical, en se basant sur le seul fait de l’indépendance professionnelle de ce dernier. ...

A few weeks later, while the instant case was taken under consideration, I was reading the decision by the Federal Court of Appeal in Hoefele, supra, when I came to the conclusion that the resolution of the issue in the instant case did not depend on the interpretation of paragraph 6(1)(b) of the Income Tax Act, as the respondent had contended in her Reply to the Notice of Appeal, but rather on the application of paragraph 6(1)(a) of that Act to the facts of the instant case. ... Distinguishing this case from Phaneuf, there was no element of gift, personal bounty or of considerations extraneous to Mrs. ...

Nevertheless, I have come to the conclusion, after careful consideration and for the following reasons, that they must be rejected. [27] In order to fully understand the details of the debate before us, it is appropriate to begin by examining rules 317 and 318, which govern the transmission to the Court Registry of the record compiled by the administrative decision-maker, as well as these rules’ interaction with rules 2, 23 and 26, which specify certain procedures for compiling and consulting the Court’s files. ... This procedure assumes that the litigants, assisted by their counsel, will fully and diligently present all the material facts which have evidentiary value in support of their respective positions and that these disputed facts will receive from a trial Judge a dispassionate and impartial consideration in order to arrive at the truth of the matters in controversy. ...