Search - considered

I have now received and considered those written submissions. [6] While the opinions of the three expert witnesses are voluminous, and the documents relied upon by them, which were entered into evidence by consent of the parties, are even more so, there is no substantial difference among them as to the basic facts of history leading up to and surrounding the making of the treaties of 1760-61. ... They had long been victimized by unscrupulous traders; they wanted, and they got, assurances that in future they would receive fair value for the goods that they brought to trade. [35] The Appellants rely upon all the treaties entered into between the British and the Mi'kmaq between 1725 and 1768, but the focus of the argument was upon the identically worded treaties of 1760-61, which were those considered by the Supreme Court of Canada in Marshall. They must, of course, be considered in the light of the whole history of relations between the parties, including the other treaties. ...

RESPONDENT’S POSITION [24]         The respondent argues that the questions should be answered since the questions are relevant as they deal with issues raised in the pleadings. [25]         The respondent submits that in decisions dealing with trading, where the Courts had to determine whether a taxpayer was operating a business or whether the taxpayer was in the business of building and selling at a profit, this Court and the Federal Court of Appeal have indicated that the trading history of shareholders and officers should be considered in determining the intention of the corporation. ... Lemay should not be considered a third party since he is a shareholder, the president and an employee of the appellant. [27]         Finally, the respondent argues that the questions do not constitute a fishing expedition since the questions are relevant to the matters in issue. ... It is sound policy for the Court to adopt a liberal approach to the scope of questioning on discovery since any error on the side of allowing questions may always be corrected by the trial judge who retains the ultimate mastery over all matters relating to admissibility of evidence; on the other hand any error which unduly restricts the scope of discovery may lead to serious problems or even injustice at trial. [37]         It is also a well-known principle that a question can only be posed at discovery if the question is relevant. [38]         In Lehigh Cement Limited, Justice Dawson of the Federal Court of Appeal held that a question will be considered relevant if there is a possibility that it will help the party asking the question, damage the position of the opposing party or lead to a series of questions that will accomplish one of the two precedent possibilities. [3] However, she also held, that even if relevance is established, the Court still has discretion to disallow a question. [4] She explained as follows: 35   Where relevance is established the Court retains discretion to disallow a question. ...

In drawing the line between "ordinary" negligence or neglect and "gross" negligence a number of factors have to be considered. ... The case also considered whether that Court could hear and decide a constitutional issue when it had not been raised in the courts below by complying with the usual requirements of notice to the interested parties. ... No. 955, at paragraphs 41-43). [37]         I had the benefit of reading recent decisions by the Honourable Rommel Masse, Deputy Judge, in the cases of Chartrand v Canada, 2015 TCC 298, [2015] TCJ No. 231 (QL) and Spurvey v Canada, 2015 TCC 300, [2015] TCJ No. 232 (QL), wherein he conducted a thorough review of the relevant jurisprudence and the various factors to be considered when deciding whether the penalty imposed pursuant to the relevant subsection is justified. ...

Although I may not specifically refer to some of these authorities in my reasons for judgment, I can indicate that I have read and considered all of them in arriving at my decision. [20]         I begin by observing that our system of taxation is both self-reporting and self-assessing. ... He stated: 43. . . the law will impute knowledge to a taxpayer who, in circumstances that dictate or strongly suggest that an inquiry should be made with respect to his or her tax situation, refuses or fails to commence such an inquiry without proper justification. [31]         It has been held that in drawing the line between “ordinary” negligence or neglect and “gross” negligence, a number of factors have to be considered: (a)     the magnitude of the omission in relation to the income declared, (b)     the opportunity the taxpayer had to detect the error, (c)      the taxpayer’s education and apparent intelligence, (d)     genuine effort to comply. ... There may be other factors that need to be considered depending on the circumstances of any particular case. [34]         Therefore, in my view, liability for the gross negligence penalties provided for by subsection 163(2) of the Act can be found when the individual taxpayer has actual knowledge of the false statement contained in his return, is wilfully blind as to the existence of the false statement or has demonstrated recklessness or was otherwise grossly negligent in the making of, participating in, assenting to or acquiescing in the making of, the false statement. [35]         In the case at bar, I am satisfied that the Appellant did not knowingly make a false statement. ...

First, as stated in subsection 163(3) of the Act, the burden of establishing the facts justifying the assessment of the penalty is on the Minister. [11]         It is also recognized that each case must be considered on its own merits and that the facts must be given careful consideration by the Court to determine whether the Minister was able to meet his burden of proof. [12]         During oral argument, counsel for the Minister did not argue that the two taxpayers knowingly made a false statement or omission in their returns. ... Roy, not only as his lawyer, but also as a lawyer for his corporations, for about thirty years and considered him a friend and honest man, Mr. ... Côté considered him his friend, as Mr. Roy attended his mother’s funeral, and there was no reason to believe he was dishonest. ...

Groscki’s actions fall entirely within the definition of a legal representative in possession and control of EMI Macao’s property who, as legal representative: (1) under subsection 159(1), is jointly liable for EMI Macao’s unpaid tax liability during the currency he possessed and controlled the property and/or; (2) under subsection 159(3), failed to obtain a clearance certificate or pay the tax liability owing prior to distributing the property under his possession and control. d)     The necessary elements of section 159 (i) The statute [40]          A useful excerpt of the relevant subsections of section 159 and the relevant definition section within the Act are as follows: (1) Person acting for another 159 (1) For the purposes of this Act, where a person is a legal representative of a taxpayer at any time, (a) the legal representative is … liable with the taxpayer (i) to pay each amount payable under this Act by the taxpayer at or before that time and that remains unpaid, to the extent that the legal representative is at that time in possession or control, in the capacity of legal representative, of property that belongs or belonged to, or that is or was held for the benefit of, the taxpayer or the taxpayer’s estate, and (ii) to perform any obligation or duty imposed under this Act on the taxpayer at or before that time and that remains outstanding, to the extent that the obligation or duty can reasonably be considered to relate to the responsibilities of the legal representative acting in that capacity; and … (2) Every legal representative (other than a trustee in bankruptcy) of a taxpayer shall, before distributing to one or more persons any property in the possession or control of the legal representative acting in that capacity, obtain a certificate from the Minister, …, certifying that all amounts (a) for which the taxpayer is or can reasonably be expected to become liable under this Act at or before the time the distribution is made, and … have been paid …. ... In the absence of facts and circumstances that indicate a trustee and beneficiary relationship, it does not appear that the lawyer or law firm acting on behalf of a client in a commercial transaction would be considered to be a “legal representative” as defined in subsection 248(1) of the Act. … However, under subparagraph 159(1)(a)(i), a legal representative’s liability is limited to the property in his or her possession or control, in the capacity of legal representative, at the time that an amount becomes payable under the Act. [47]          In turn, the relevant excerpt from the Technical Note provides as follows: (say a parent corporation that wound up its subsidiary and acquired its assets) … The liability of the legal representative acting in good faith is limited to the property in the possession and control of the legal representative when that person is called upon to make a payment on behalf of the taxpayer, or to any proceeds of disposition and replacement property obtained by the legal representative from that property. … For example, a representative who has a general power of attorney will have broader responsibilities than one whose authority is limited to certain assets of the taxpayer. e)      Analysis and Findings [48]          As a third party liability and collection mechanism, section 159 has critical components which must be present before the provision is engaged. ... Conclusions [57]          If the present context includes only examples of deceased persons, but the extended purpose is thought to be expanded through the Interpretation Bulletin and Technical Note, then dissolution (or cessation) and liquidation must be considered. ...

When the evidence is considered as a whole, it appears to me that the Appellant and the owner-operators have formed a joint venture to carry on a taxi passenger service business. [124] The parties operate the business together. ... The relative weight of each will depend on the particular facts and circumstances of the case. [130] [53]   In addition to the Wiebe Door factors, a jurisprudential trend has emerged where the subjective intentions of the parties must also be considered. ... Furthermore, the remittance of EI premiums suggests that initially the Appellant-Intervenor was considered by the Appellant as an employee.   ...

Paragraph 21 reads as follows: [21] Counsel for the Respondent relied on a decision of the Ontario Superior Court of Justice in which Kiteley J. considered a rule similar to our Rule 170.1:  Treats Inc. v. ... Canada [31] decision, the FCA cautioned that “[c]are must be taken not to import the pronouncements in Hryniak uncritically, thereby improperly amending” the subject matter of rules of the courts. [32] This Court believes that i t is in this light that Hryniak must be considered. ... To the Court’s knowledge, the courts have not yet determined whether, for the purpose of the application of the ETA, the constituent elements (services) of a supply made under a contract between a supplier of a service and a recipient could be considered as part of a single supply made to another recipient.   ...

It would be particularly troubling for Section 302 and Section 165(7) to have that effect when the reassessment or additional assessment results in an amended notice of appeal that raises new issues, statutory provisions, facts or arguments that need to be considered and addressed in the reply, [22] or, as in this case, where a change to the amount in dispute affects the procedure that governs the appeal. [46]   Section 165(7) and Section 302 provide procedural relief which must be distinguished from the substantive appeal rights. [23] The purpose of Section 302 and Section 165(7) is fulfilled without any need for an abridgement in timelines of the nature suggested by the Appellant. ... No provision of the TCC Act, the ETA IP Rules or the GP Rules addresses whether an amended notice of appeal filed in reliance of Section 302 is to be considered a notice of appeal in respect of the reassessment or additional assessment or an amended pleading for the appeal previously filed. ... Because the Appellant purported to elect to have the GP Rules apply in the Amended Notice of Appeal, [32] it seems unlikely that she would seek to make that election. [58]   In my view, the differences between the general and informal procedure rules regarding the form of notice of appeal and service of the notice of appeal further highlight why an amended notice of appeal filed pursuant to Section 302 should be considered an originating document for purposes of establishing the timelines for filing the reply. [59]   Under the GP Rules, the notice of appeal must be in Form 21(1)(a), which requires particular details including matters not required in a notice of appeal for an appeal governed by the informal procedure rules. ...

While a failure to inquire may be evidence of recklessness or criminal negligence, as for example, where a failure to inquire is a marked departure from the conduct expected of a reasonable person, wilful blindness is not simply a failure to inquire but, to repeat Professor Stuart’s words, “deliberate ignorance”. 50 The subjective nature of the wilful blindness standard also means that the personal attributes of the individual may be considered in determining whether the individual is wilfully blind. [40] Therefore, wilful blindness will be established if the respondent proves, on a balance of probabilities, that Mrs. ... The Queen, [17] this Court enumerated a number of circumstances that can be considered “red flags”: i) the magnitude of the advantage or omission; ii) the blatantness of the false statement and how readily detectable it is; iii) the lack of acknowledgment by the tax preparer who prepared the return in the return itself; iv) unusual requests made by the tax preparer; v) the tax preparer being previously unknown to the taxpayer; vi) incomprehensible explanations by the tax preparer; vii) whether others engaged the tax preparer or warned against doing so, or the taxpayer himself or herself expresses concern about telling others [42] These are only examples of circumstances that can be taken into consideration by the Court. ... It might well be that in some circumstances these situations can be considered “red flags”, but it is not the case here. ...