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His affidavit is directed to support the claim of privilege of documents and whether documents created or considered by a person who was not a member of the bar, although a law graduate, are subject to privilege ... It can reasonably be considered that the guarantee fee arrangements at issue were not entered into primarily for bona fide purposes other than to obtain tax benefits ... (ii)  whether the guarantee arrangements entered into between GE Capital and the Appellant would not have been entered into between persons dealing at arm's length, within the meaning of paragraph 247(2)(b) of the Act;   (iii) whether the guarantee arrangements entered into between GE Capital and the Appellant can reasonably be considered not to have been entered into primarily for bona fide purposes other than to obtain tax benefits within the meaning of paragraph 247(2)(b) of the Act; ...

  [29]     It was clearly established on the evidence adduced, which is entirely consistent with the facts considered in the analysis of the case, that the Appellant was hardly or not at all accountable for the work performed for the lobster-fishing business ...   [43]     On a balance of probabilities, the facts considered in the analysis of the case were sufficient to warrant the determination that was entirely reasonable in the circumstances. ...   [44]     The analysis of the facts was conducted in an appropriate and reasonable manner; the relevant facts were considered and the conclusion reached is reasonable and entirely appropriate. ...

In Recalma, supra, at page 6240, the Federal Court of Appeal affirmed the judgment of Judge Hamlyn of this Court and recognized four factors to be considered in determining the situs of investment income.   ... In Sero and Frazer, Sharlow J.A. also considered certain criticisms regarding Recalma, but saw in these none that could change her finding that the investment income was not situated on a reserve. ... the extent to which the investment income may be considered as being derived from economic mainstream activity ...

In Recalma, supra, at page 6240, the Federal Court of Appeal affirmed the judgment of Judge Hamlyn of this Court and recognized four factors to be considered in determining the situs of investment income.   ... In Sero and Frazer, Sharlow J.A. also considered certain criticisms regarding Recalma, but saw in these none that could change her finding that the investment income was not situated on a reserve. ... the extent to which the investment income may be considered as being derived from economic mainstream activity ...

In Recalma, supra, at page 6240, the Federal Court of Appeal affirmed the judgment of Judge Hamlyn of this Court and recognized four factors to be considered in determining the situs of investment income.   ... In Sero and Frazer, Sharlow J.A. also considered certain criticisms regarding Recalma, but saw in these none that could change her finding that the investment income was not situated on a reserve. ... the extent to which the investment income may be considered as being derived from economic mainstream activity ...

" For the years in question, the definition read: "tax shelter"- "tax shelter" means any property (including, for greater certainty, any right to income) in respect of which it can reasonably be considered, having regard to statements or representations made or proposed to be made in connection with the property, that, if the person were to acquire an interest in the property, at the end of a particular taxation year that ends within 4 years after the day on which the interest is acquired:             (a) the total of all amounts each of which is: (i) an amount, or a loss in the case of a partnership interest, represented to be deductible in computing income in respect of the interest in the property (including, where the property is a right to income, an amount or loss in respect of that right that is represented to be deductible) and expected o be incurred by or allocated to the person for the particular year or any preceding taxation year, or (ii) any other amount represented to be deductible in computing income or taxable income in respect of the interest in the property and expected to be incurred by or allocated to the person for the particular year or any preceding taxation year, other than any amount included in computing a loss described in subparagraph (i); would equal or exceed (b) the amount, if any, by which: (i) the cost to the person of the interest in the property at the end of the particular year, determined without reference to section 143.2, would exceed (ii) the total of all amounts each of which is the amount of any prescribed benefit that is expected to be received or enjoyed, directly or indirectly, in respect of the interest in the property by the person or another person with whom the person does not deal at arm's length, but does not include property that is a flow-through share or a prescribed property. [10]     Moreover, subsection 231(6) of the Regulations stated:            (6) For the purposes of paragraph (b) of the definition "tax shelter" in subsection 237.1(1) of the Act, "prescribed benefit" in respect of an interest in a property means any amount that may reasonably be expected having regard to statements or representations made in respect of the interest, to be received or enjoyed by a person (in this subsection referred to as "the purchaser") who acquires the interest, or a person with whom the purchaser does not deal at arm's length which receipt or enjoyment would have the effect of reducing the impact of any loss that the purchaser may sustain in respect o the interest, and includes such an amount: (a) that is, either immediately or in the future owed to any other person by the purchaser or person with whom the purchaser does not deal at arm's length, to the extent that: (i) liability to pay that amount is contingent, (ii) payment of that amount is or will be guaranteed by security is or will be provided by or in agreement to indemnify the other person to whom the amount is owed is or will be entered into by: (A) a promoter in respect of the interest, (B) a person with whom the promoter does not deal at arm's length, or (C) a person who is to receive a payment (other than a payment made by the purchaser) in respect of the guarantee, security or agreement to indemnify, (iii) the rights of that other person against the purchaser or against a person with whom the purchaser does not deal at arm's length in respect of the collection of all or part of the purchase price are limited to a maximum amount, are enforceable only against certain property, or are otherwise limited by agreement, or (iv) payment of that amount is to be made in a foreign currency or is to be determined by reference to its value in a foreign currency and it may reasonably be considered, having regard to the history of the exchange rate between the foreign currency and Canadian currency that the aggregate of all such payments when converted to Canadian currency at the exchange rate expected to prevail at the date on which each such payment would be required to be made, will be substantially less than that aggregate would be if each such payment was converted to Canadian currency at the time that each such payment became owing, (b) that the purchaser or a person with whom the purchaser does not deal at arm's length is entitled at any time to, directly or indirectly, receive or have available (i) as a form of assistance from a government, municipality or other public authority, whether as a grant, subsidy, forgiveable loan, deduction from tax or investment allowance, or as any other form of assistance, or (ii) by reason of a revenue guarantee or other agreement in respect of which revenue may be earned by the purchaser or a person with whom the purchaser does not deal at arm's length to the extent that the revenue guarantee or other agreement may reasonably be considered to ensure that the purchaser or person will receive a return of all or a portion of the purchaser's outlays in respect of the interest; (c) that is the proceeds of disposition to which the purchaser may be entitled by way of an agreement or other arrangement under which the purchaser has a right, either absolutely or contingently, to dispose of the interest (otherwise than as a consequence of the purchaser's death) including the fair market value of any property that the agreement or arrangement provides for the acquisition of in exchange for all or any part of the interest, and (d) that is owed to a promoter, or a person with whom the promoter does not deal at arm's length, by the purchaser or a person with whom the purchaser does not deal at arm's length in respect of the interest, but, except as otherwise provided in subparagraph (b)(ii), does not include profits earned in respect of the interest. [11]     The promotional documents regarding the investment in the teakwood plantation for which Maya Forestales was the registered owner in Costa Rica, directed at Canadian buyers, were all different. ... " Regarding the additional development fee of 2% per year payable after the first year, here again, counsel for the Appellant claims that these are amounts deductible not in respect of property acquired but essentially for services, so that the proposed investment cannot be considered a "tax shelter" within the meaning of subsection 237.1(1) of the Act. [22]     While recognizing that the proposed investment consists of two components, namely, for the investor, purchasing a lot or a part of a lot and payment in advance for development fees for this lot, I feel that the two components are part of an inseparable whole, a package deal, that was represented as such in the promotional documents. ... Therefore, in my opinion, by interpreting subparagraph (a)(ii) of the definition of "tax shelter," any amount advertised as deductible and that has some kind of connection with the acquired property or the acquisition of a share in the property must be considered. [25]     For 1995 and 1996, it must be determined whether the amount advertised as deductible, 99% of the total investment cost, or $9,900 for a $10,000 investment, is greater than or equal to the reduced total cost of the value of the interest set out in the Regulations. ...

It appears from a reading of subparagraphs 18(r) and 21(c) of the Reply, combined with Exhibit R-2, that the amount of $7,041 in question was withdrawn in March 1998 by means of Form T3012A from a spousal RRSP set up by the appellant and that it was considered as a refund of undeducted RRSP contributions. ... The Minister however included in the appellant's income for that year, pursuant to subsection 146(8.3), an amount of $10,083 for contributions that he made to spousal RRSPs and that were considered to have been withdrawn in that year. ... At least, it seems that the Minister accepted that the refunds made at the beginning of March 1998 by both institutions should be considered as having been made within the time limit for the 1997 taxation year. ...

Justice Décary noted in Wolf, supra, at paragraph 117, these tests are simply factors to be considered in the determination of what "is the essence of a contractual relationship, i.e. the intention of the parties". ... Secondly, if a clear classification is not determinable by applying these tests, the existence of an independent worker's business and the intentions of the parties must be considered. ... However, I have considered such additional factors and none would weigh materially on the findings set out in these Reasons although I acknowledge that many such factors lead me to acknowledge that this case might well be labeled a "close case". [10] Wolf, at paragraph 93. [11] See excerpts from Wolf at paragraph 8 of these Reasons. ...

(from paragraph 71 of the lead judgment in Wolf), if it is established that the terms of the contract, considered in the appropriate factual context, do not reflect the legal relationship that the parties profess to have intended, then their stated intention will be disregarded ... The same can be said of all of the factors, considered in their entirety, in the context of the nature of the activities of the RWB and the work of the dancers engaged by the RWB. ... Control   [22]     While the control test may have some shortcomings, it remains a factor that must always be considered. ...

In any event, I accept that the SCJ may not have considered the tax liability in question. ... Separated persons are treated as two tax units in respect of one income source so as to "allow" income splitting but they are not considered so independent as not to require accountability in respect of that income source- as between the two of them. ... There is no indication that the Appellant's tax liability in respect of the support payments was considered in the course of arriving at the settlement. ...