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WOOLNER      Applicant          - and-      THE ATTORNEY GENERAL OF CANADA      Respondent     - and-      THE ONTARIO ALLIANCE OF CHRISTIAN SCHOOLS SOCIETIES      Intervenor      REASONS FOR JUDGMENT      (Delivered Orally from the Bench at Toronto, Ontario on Thursday, October 21, 1999) SEXTON J.A. [1]      The applications A-912-97, A-913-97 and A-914-97, were heard together and this set of reasons applies to all three dockets. [2]      These applications are for judicial review of the decision of Hamlyn T.C.J. in which he held that contributions made by the applicants to the First Mennonite Church could not be considered gifts to the extent they reflected payments of tuition for secular education. ... " [10]      Nevertheless, Heald J. concluded that "the payments made by these parents to the School were not payments made without consideration and cannot therefore be considered "gifts" [...]. ...

In reaching that conclusion, I have carefully considered the appellant’s contention in this Court that the learned trial judge failed to give effect: to a legal principle established by MNR v Consolidated Mogul Mines Limited, [1969] S.C.R. 54; [1968] CTC 429; 68 DTC 5284. ... Even if there were admissions at trial on this question (which is not clear to me), having regard to the evidence, it would seem that the sole profit-making operation of the appellant in those years was “contract drilling”, which, prima facie, is neither a “gas business” nor a “mining business”.* [1] However, as this fact does not appear to have been. considered as being in issue at trial, if it had become relevant, I would have been inclined to refer the assessments back to the respondent for reconsideration having regard only to this aspect of the matter. ...

E-13 281.1 (1) The Minister may waive or cancel interest payable by a person under section 280. (2) The Minister may waive or cancel penalties payable by a person under section 280. 281.1 (1) Le ministre peut annuler les intérêts payables par une personne en application de l'article 280, ou y renoncer. (2) Le ministre peut annuler la pénalité payable par une personne en application de l'article 280, ou y renoncer. [4]                In order to facilitate the administration of these sections, which are part of the "fairness" provisions in the legislation, the Minister has issued guidelines setting out a non-exhaustive list of factors that will be considered in the exercise of the statutory discretion, including whether it would cause undue financial hardship to require the taxpayer to pay, and the taxpayer's compliance record. [5]                The standard of review applicable to the Minister's exercise of discretion is unreasonableness simpliciter: Lanno v. ... The reasons given for recommending that their request for a waiver be refused disclose serious errors in these calculations. [8]                First, in calculating the appellants' indebtedness, the CCRA official considered only the amount of the interest and penalties, which amounted to $248,566.07, but not the amount of tax owing, which was $424,835.85. ...

Once the conversion took place, there was no outstanding account receivable that could be considered a bad debt. [5]                 There was a reason for the conversion of debt to equity. ... The purpose may have been to satisfy U.S. regulatory authorities, but whatever the purpose, debt was converted to equity and, for tax purposes, there was no outstanding debt that could be considered a bad debt to be written off. [6]                 As indicated above, the Tax Court Judge found that the amount in question arose initially as a trade debt and by implication was included in the Appellant's revenue and income for income tax purposes. ...

., page 185, lines 1 to 6). [13]            In Housen, at paragraph 46, the Supreme Court of Canada made it clear that a judge is presumed to have considered all the evidence in the record. ... She also detailed at length the imperfections in the evidence, citing specific examples that the appellants argued the respondent had not properly considered (see for example, Exhibit A-7, “ Likha ”, Exhibit A-2, “ Taliba ” and Reasons, subparagraph 10(4)). [14]            In these circumstances, the presumption that the judge reviewed all of the documents in the record has not been rebutted. [15]            In these circumstances, the appeal should be dismissed. ...

The question that arose before the Tax Court of Canada was whether, in spite of this lack of legal control, René Simoneau still controlled the appellant within the broader concept of corporate control in subsection 256(5.1): 256(5.1) For the purposes of this Act, where the expression “controlled, directly or indirectly in any manner whatever” is used, a corporation shall be considered to be so controlled by another corporation, person or group of persons (in this subsection referred to as the “controller”) at any time where, at that time, the controller has any direct or indirect influence that, if exercised, would result in control in fact of the corporation.... 256(5.1) Pour l’application de la présente loi, lorsque l’expression « contrôlée directement ou indirectement de quelque manière que ce soit », est utilisée, une société est considérée comme ainsi contrôlée par une autre société, une personne ou un groupe de personnes—appelé « entité dominante » au présent paragraphe—à un moment donné si, à ce moment, l’entité dominante a une influence directe ou indirecte dont l’exercice entraînerait le contrôle de fait de la société […]   [6]                After having considered the evidence, the judge of the Tax Court of Canada concluded that René Simoneau had de facto control over the appellant during the relevant period. ...

He then set aside the decision of the Minister of National Revenue (Minister), who had considered the relationship existing between the worker and the respondent to be that of an employer/employee, governed by an employment contract. ... He considered them and provided the reasons for which he found them of little use: see paragraph 16 of the reasons for his decision. ...

Having carefully considered the record and the submissions of Dr. Hoffman at the hearing, I have not been persuaded to the contrary. The record discloses that the Minister thoroughly reviewed and considered the information submitted by Dr. ...

  [6]                Given the findings made by the Tax Court Judge in the course of his reasons, the extended definition of “property” was relevant to the issue which he had to decide and had to be considered. ... It contends that the definition of “property”, if applicable on the facts of this case, gives rise to allocation issues which have yet to be considered and that the record is incomplete on this point ...

  [5]                With respect to subparagraph 13(cc), the Judge acknowledged that the legal significance of the phrase “acting in concert” may well not have been considered by the auditor.  However, the Judge considered that the issue of whether the facts would support the use of the phrase “acting in concert” was an issue best left to the trial judge ...