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In addition, our Court never considered the argument that Mr. Tuccaro now makes, namely, that the 2013 Motion determined whether res judicata and, more precisely, issue estoppel applied in respect of Benoit simply because the Crown based the 2013 Motion on the doctrine of abuse of process [16]            In fact, it is quite clear from the review of the 2013 Motion (particularly paragraph 6(c)), the memoranda of the parties before the TCC in 2013 and those filed before our Court in 2014, that the Crown in fact never raised res judicata (be it cause of action estoppel or issue estoppel). ... Thus, in Danyluk, the Supreme Court considered how the discretion should be exercised rather than returning the file to the motion judge, and concluded, after a review of various relevant factors including most importantly whether “taking into account the entirety of the circumstances, that the application of issue estoppel would work an injustice”. ...

Welch carefully considered how to proceed each month and decided, as each return became due, that they could not complete the returns and swear to the truth of their content, considering the missing information ... These circumstances must be taken into account, but must be considered against an objective "reasonably prudent person" standard. ...

  [16]         However, in paragraph 39, Justice Mainville recognized that a director’s particular circumstances are to be considered and measured against a reasonably prudent person standard:   An objective standard does not however entail that the particular circumstances of a director are to be ignored. These circumstances must be taken into account, but must be considered against an objective “reasonably prudent person “standard” ...

The home has never been offered for sale nor for rent, and has never been left vacant. [6]              The Appellant’s new housing rebate application was turned down because, per the Canada Revenue Agency (the “CRA”) letter turning down the rebate request, “for rebate purposes, your house in Canada can only be considered a secondary place of residence since your status while in Canada is a visitor”. [7]              The CRA notice of confirmation disallowing the Appellant’s objection similarly concludes that the Markham home is a secondary residence because the Appellant continues to reside in the United Kingdom. [8]              This is the position that was maintained at the hearing notwithstanding the evidence. [9]              The Respondent’s position is wrong. ... Analysis [21]         As noted above, the CRA letter denying the rebate application turns it down on the basis that the Appellant’s house in Canada can only be considered as a secondary place of residence since his status while in Canada when he agreed to buy it and when he moved in was that of a visitor. ...

The limitations placed on cross-examination of the affiant led the Tax Court Judge to conclude that the contents of Schedule A were unreliable. [10]            The Tax Court Judge then considered whether the choice of Ms. ... Toaze. [11]            The Tax Court Judge then considered the scope of cross-examination on an affidavit. ...

It cannot use the Federal Court as some form of back alley to avoid the provision and to avoid the jurisdiction of the Tax Court as confirmed in ConocoPhillips. [35]            To the extent that this Court has a small window of jurisdiction as per ConocoPhillips Canada Resources Corp v Canada (National Revenue), 2016 FC 98, 262 ACWS (3d) 1087, in matters of bad faith and fettering discretion, those circumstances do not arise here. [36]            The Applicant, while admitting that the October 23 letter was out of time if considered as a Notice of Objection, contends that the Minister fettered her discretion or refused to exercise her discretion when she used the following phrase to justify not extending time: “there would have been no benefit to be gained in CRA considering an extension”. The Applicant argues that these words show that the Minister considered that an extension of time is only justified if CRA benefits – as if this type of consideration is a one-way street. [37]            The Applicant mischaracterizes the Minister’s words. ...

Smith testified that, if Jazz had not paid for the parking pass, he would have considered other options. While he stated that he would have considered other options, he did not mention what they were, with the exception of the option that consisted of paying for a parking pass out of his own pocket. ...

The Law [24]         Paragraph 11 of the PASF states: “ The Appellant used the proxy method of claiming overhead costs for its SR&ED claim in the 2010 Taxation Year. ” Counsel for the Appellant confirmed that the parties are referring to the election that is made under clause 37(8)(a)(ii)(B) and subsection 37(10) of the Act. [25]         With respect to salary and wages, since the Appellant made the so-called proxy election, it was only entitled, under subclause 37(8)(a)(ii)(B)(IV), to include as an expenditure on or in respect of scientific research and experimental development “ that portion of an expenditure made in respect of an expense incurred in the year for salary or wages of an employee who is directly engaged in scientific research and experimental development in Canada that can reasonably be considered to relate to such work having regard to the time spent by the employee thereon... ”. ... As a result, 100% of those wages can reasonably be considered to relate to SR&ED and they represent an expenditure on or in respect of SR&ED. [32]         Counsel for the Respondent argued that, if I accept that the Appellant paid the $38,880 of wages solely for SR&ED, then Gary McCrea and Tom McCrea did not receive any compensation for the significant time they spent “ performing director or management activities ” for the Appellant. [33]         I do not accept this conclusion. ...

That issue can now be considered by the Court. Background [5]              What follows is a short summary of the evidence as previously reviewed in the oral reasons delivered on March 1, 2017. ... [14]         As indicated above, following the reasoning of this Court in Melanson, supra, the Applications to extend the time to file notices of objection were adjourned sine die to allow the Respondent to consider whether the letter of September 10, 2015 could be considered as valid applications. ...

There are many cases in which the matter has been considered both in this court and the Federal Court of Appeal. ... The question is whether, considered in the context of the law and the litigation process, the claim has no reasonable chance of succeeding. ...