Search - considered

Between: CHANTAL ROY Applicant- and- MINISTER OF NATIONAL REVENUE Respondent      REASONS FOR JUDGMENT OF THE COURT (Delivered from the bench at Ottawa, Ontario, on Wednesday, September 30, 1998) NOËL J.A. [1]      It has not been shown that Madam Justice Lamarre of the Tax Court of Canada committed an error which would justify the intervention of this Court. [2]      It was open to her to find on the evidence before her that the appellant worked before and after the periods of employment for which she reported no earnings, and this important fact, considered in light of the other circumstances in evidence, justifies her conclusion. [3]      The application for judicial review will be dismissed.                                      ...

Appellant   and   HER MAJESTY THE QUEEN Respondent     REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario, on November 27, 2007) RYER J.A. [1]                Having considered the able arguments of counsel, we have not been persuaded that the judgment of Justice Woods (2006 TCC 449) was based upon any error of law or any error in the application of the relevant legal principles. ...

The judge of the Tax Court of Canada dismissed the appeal on the ground that the decisions of this Court did not permit him to intervene; he added that he regretted having to make this decision because he considered the Minister’s decision to be “totally insupportable” and incomprehensible. ...

We would only add that we assume that in the exercise of his discretion the Tax Court Judge considered, among other factors, whether the appeal by the respondent in the Tax Court has any possible merit. ...

Having considered Mr. Babich’s arguments on this point, and having reviewed the transcript, we do not accept that the conduct of the trial was unfair in any respect, or that anything said or done by the judge improperly led Mr. ... Having considered the judge’s reasons on this point, and the evidence, we are satisfied from the judge’s reasons that her conclusion is correct in law and is consistent with the evidence presented to her ... The judge considered that question and rejected it, primarily on the basis that there was no evidence of a shareholder loan. ...

In particular subsection 45 (2) of the Interpretation Act 5 is responsive to this argument: 45. (2) The amendment of an enactment shall not be deemed to be or to involve a declaration that the law under that enactment was or was considered by Parliament or other body or person by whom the enactment was enacted to have been different from the law as it is under the enactment as amended. 45. (2) La modification d"un texte ne constitue pas ni n n"implique une déclaration portant que les règles de droit du texte étaient différentes de celles de sa version modifiée ou que le Parlement, ou toute autre autorité qui l"a édicté, les considérait comme telles. [7]      The primary argument being advanced by the appellants is that the words "funded by a government" (subsection 123(1) of the Act) is equivalent to the words "government funding" (subsection 2(a)(ii) of the GST Regulations) and therefore one need look no further. ... " The closest English equivalents are the words "grant" or "subsidy". 9 [11]      Earlier decisions of this Court also support this result, having decided that the receipt of money as a result of an ordinary business contract negotiated between the parties for business reasons cannot be considered to be a grant or subsidy. 10 [12]      I also reject the appellants" argument that the phrases "funded by a government" and "government funding" are equivalent, and that, as a result, the definition of "government funding" assists in determining the meaning of "funded by a government". When an Act uses different words in relation to the same subject such a choice by Parliament must be considered intentional and indicative of a change in meaning or a different meaning. 11 For the purpose of delineating the eligibility for the GST rebates, Parliament has chosen to make a distinction between "government funding" and "funded by a government". ...

The problem, however, is that section 94.1 of the Regulations provides that a week of insurable employment "shall be considered to represent 35 hours of insurable employment". ... Employment Insurance Regulations:      94.1 Where, for the purposes of the Act and in respect of a benefit period established on or after January 5, 1997, a claimant presents evidence of a week of insurable employment that occurred before January 1, 1997, that week of insurable employment shall be considered to represent 35 hours of insurable employment.      ... Hoek recently considered the interpretation to be given to section 94.1 of the Regulations under the Employment Insurance Act. ...

A fair reading of the Federal Court’s reasons from beginning to end in light of the record before it shows that it properly applied the proper legal test for obviousness. [4]   In applying the legal test for obviousness to the evidence before it, the Federal Court concluded as follows (at para. 203): Having now considered each of the characteristic components of bortezomib individually, I must now consider whether it was inventive to have selected all of them in combination. ... The appellate court must also keep front of mind the rebuttable presumption that the first-instance court reviewed and considered all of the evidence: Housen at para. 46. ... But the wider context often reveals what the first-instance court considered and decided, and why. [12]   Admittedly, the line between true palpable and overriding error on the one hand and mere inadequacies of expression on the other can be subtle and indistinct. ...

Furthermore, while these individual corporation profiles might have a technical purpose for an investor or investment counsellor and also an educational purpose within the widest possible meaning that can be given to that term, it is not considered that either of these extensions of meaning were intended by the legislator. ... Even if the publication were considered to fall within the exemption provided for printed books, it would fall into the exclusion from such exemption as being a periodic report. ... The appellant argued that, having found the Surveys considered in Appeals 2286 and 2287 to be tax exempt as national directories, the Board must needs have come to the same conclusion in this case. ...

The following provisions of the Estate Tax Act* [1] should be considered in connection with this appeal: 7. (1) For the purpose of computing the aggregate taxable value of the property passing on the death of a person, there may be deducted from the aggregate net value of that property computed in accordance with Division B such of the following amounts as are applicable: (a) the value of any property passing on the death of the deceased to which his spouse is the successor that can, within six months after the death of the deceased or such longer period as may be reasonable in the circumstances, be established to be vested indefeasibly in his spouse for the benefit of such spouse, except any such property comprising a gift made by the creation of a settlement or the transfer of property to a trustee in trust; (2) For the purposes of paragraph (1)(a), any superannuation, pension or death benefit payable or granted (a) out of or under any fund or plan established for the payment of superannuation, pension or death benefits to receipients, or (b) out of the revenue of Her Majesty in right of Canada or a province or under or subject to any Act of the Parliament of Canada or of the legislature of a province, to the spouse of a deceased on or after the death of the deceased in respect of such death, subject to a provision that such benefit ceases to be payable to such spouse if he remarries, shall not, by reason only of such provision, be considered not to be vested indefeasibly i in him. 62. (1) In this Act “settlement” includes (a) any trust, whether expressed in writing or otherwise, in favour of any person, and, if contained in a deed or other instrument effecting the settlement, whether or not such deed or other instrument was made for valuable consideration as between the settlor and any other person, and (b) any deed or other instrument under or by virtue of which a usufruct or substitution is created or any real property or estate or interest therein stands limited to any persons by way of succession: As I see the matter, there are two hurdles that the appellant must surmount to succeed in this appeal, viz: (a) it must be established that the “property” the value of which it is wished to deduct under paragraph 7(1)(a) was not “property comprising a gift made by creation of a settlement” (which by definition includes an “instrument under or by virtue of which... a substitution is created”) so as to be excluded from paragraph 7(1)(a) by the concluding words thereof, and (b) it must be established that the “property” the value of which it is wished to deduct under paragraph 7(1)(a) was “vested inde- feasibly” in the widow “for the benefit of” the widow, or, as it is put in the French version, that the property was “dévolus irrévocablement à son conjoint au profit de ce dernier”. ... For the purposes of paragraph 7(1)(a), only superannuation, pension or death benefits payable to the spouse of a deceased subject to a provision that such benefit ceases to be payable to him if he remarries are to be considered not to be vested indefeasibly in him (subsection 7(2)). ...