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He stated that the Appellants kept no books or records, but did have invoices and bank cancelled cheques and statements, which the Appellants considered to be their books and records. ... He now asks that these expenses be considered capital expenses. [14]     Hikmat purchased Rumble in 1988 for $79,100 and sold it in 1993 for $255,000. ... But the Appellants are asking that the expenses be considered capital and be added to the cost of acquisition in calculating the adjusted cost base ...

Moreover, the auditor mentioned the possible application of the anti-avoidance provision in subsection 245(1) of the Act and found that the amount of the RRSP withdrawal should be considered income under paragraph 56(1)(h) of the Act ... ]   [17]     It is either the time the non-qualified investment was acquired or the time it commenced to be used as a loan guarantee that must be considered when determining the fair market value of the property and the year this value is to be added to the income. ...   [25]     Before concluding, it must be noted that the Minister's alternative argument cannot be considered in this case. ...

  [4]     The parties proposed that the appeal of Ovide Fraser be considered as a test case. ...    [15]   The question that must be considered first and foremost is whether the Appellants can benefit from the protection of section 8 of the Charter. ... The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: (i)         presence at the time of the search; (ii)        possession or control of the property or place searched; (iii)       ownership of the property or place; (iv)       historical use of the property or item; (v)        the ability to regulate access, including the right to admit or exclude others from the place; (vi)       the existence of a subjective expectation of privacy; and (vii)      the objective reasonableness of the expectation.   ...

He considered this work long-term contracts since they were spread out over more than six weeks, especially when it involved dismantling parts to have them chrome-plated, painting the structure, and assembling everything once the parts came back. ... She was unemployed during what Luc Charette considered the off-season. ... According to her testimony, the dates on the records of employment are true and despite the fact that she declared the date on the last record to be false, the Minister considered her employment insurable. ...

In this decision, the Federal Court of appeal ruled that the voting shares in trust in connection with which the vote could not be exercised could not constitute "controlled" shares even if they subsequently had to be considered issued shares for the purposes of calculating the 40% required pursuant to subsection 14(a) of the Employment Insurance Regulations applicable at the time. [53]     For her part, counsel for the Respondent argued that there is no proof that Mr. ... Certificate No 4 was not issued until April 3, 2001. [54]     Counsel for the Respondent relies on the Federal Court of Appeal decision in Cloutier (supra) to confirm that although Symphony could not, pursuant to section 102 of the Quebec Companies Act, exercise its right to vote in connection with the 4,163,265 shares issued in its name on August 31, 2000 (Certificate Nos 9, 10, 11 and 12) as of October 31, 2000, because it had not paid the balance owing on these shares, the latter should nonetheless have been considered issued voting shares for the purposes of calculating the 40% required pursuant to paragraph 5(2)(b) of the Act. [55]     Thus, according to counsel for the Respondent, if the issued shares of the Appellant's capital stock as of August 31, 2000 and April 3, 2001 were taken into account, it is clear that Mr. ... Justice Jean-Jude Chabot of the Quebec Superior Court in a judgment dated April 13, 2004 (Jean-Félix Racicot provided the Court with a copy of the judgment on April 14, 2004). [61]     The only issue is whether the 4,163,265 Class A shares with voting rights in Symphony's name must be considered voting shares of the issued shares for the purposes of calculating the 40% required pursuant to paragraph 5(2)(b) of the Act. [62]     I feel that the only response to this question can be affirmative and that the conclusion of the Federal Court of Appeal in Cloutier (supra) should be applied. [63]     This Federal Court of Appeal decision involved the application of subsection 14(a) of the Employment Insurance Regulations which at the time read as follows: "14.     ...

In this case, the workers recruited to give the training sessions were considered by a Deputy Tax Court Judge as self-employed workers and not employees. [48]     Counsel for the respondent referred to the decision of the Federal Court of Appeal in Wiebe Door Services Ltd. v. ... As the parties considered that they were engaged in an independent contractor relationship and as they acted in a manner that was consistent with this relationship, I do not believe that it was open to the Tax Court Judge to disregard their understanding... [53]     I refer to another decision of the Federal Court of Appeal in D & J Driveway Inc. v. ... 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". ...

The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors, which may be of importance, are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk be taken, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task. ... To formulate a decision then, the overall evidence must be considered taking into account those of the tests which may be applicable and giving to all the evidence the weight which the circumstances may dictate. [11]     The nature of the tests referred to by the Federal Court of Appeal can be summarized as: a)      The degree or absence of control exercised by the alleged employer; b)     Ownership of tools; c)             Chance of profit; d)            Risk of loss; In addition, the Court must consider the question of the integration, if any, of the alleged employee's work into the alleged employer's business. [12]     In the Sagaz decision (above) Major J. said this:...control is not the only factor to consider in determining if a worker is an employee or an independent contractor... [13]     He dealt with the inadequacy of the 'control test' by again approving the words of MacGuigan J. in the Wiebe Door case (above) as follows: A principal inadequacy [with the control test] is its apparent dependence on the exact terms in which the task in question is contracted for: where the contract contains detailed specifications and conditions, which would be the normal expectation in a contract with an independent contractor, the control may even be greater than where it is to be exercised by direction on the job, as would be the normal expectation in a contract with a servant, but a literal application of the test might find the actual control to be less. ... The Federal Court of Appeal considered as much in both the Wolf decision (above) and the Precision Gutters decision (above). ...

("Diese"). [2]      The Minister disallowed the deductions because he considered the losses at issue to be capital losses, given that Diese was not a "small business corporation" within the meaning of subsection 248(1) of the Act. ... It should also be noted that the Respondent's Reply to the Notices of Appeal does not indicate that the Minister considered that Diese's principal purpose was to earn income from property. ... Each case must be considered on its own merits. I do not feel it is useful to comment on each of these decisions and distinguish them from this one. ...

He then found that there was no merit in the appeal because he had no discretion to extend the time; and so he declined to open it indicating that the judge who sits on an application under section 18.21 is entitled to look at the substance of the appeal, the real questions that are brought before the Court in the Notice of Appeal and Reply in considering whether to reopen. [16]     This was also considered by Judge Hershfield in Rochelle Moss v. ... " Although this allegation is not considered in the affidavit of Lorraine Edinboro, in my view, it is a material fact which ought to have been considered. ...

The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors, which may be of importance, are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk be taken, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task. ... To formulate a decision then, the overall evidence must be considered taking into account those of the tests which may be applicable and giving to all the evidence the weight which the circumstances may dictate. [9]      The nature of the tests referred to by the Federal Court of Appeal can be summarized as follows: a)        The degree or absence of control exercised by the alleged employer; b)       Ownership of tools; c)        Chance of profit; d)       Risk of loss. ... He set his own hours and came and went to the office and elsewhere at all kinds of different hours as he saw fit. [29]     With respect to assumption (n), the Appellant considered that he was free to work for any other brokerage house that he chose. ...