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Analysis [8]                 Although the defendants' motion was made pursuant to Rule 221 of the Federal Court Rules, 1998 ("the Rules"), it is apparent that ultimately the power to strike must be considered here in accordance with this Court's inherent jurisdiction, not against an action but an application (see Bull (David) Laboratories (Canada) Inc. v. ...

Overpayment of Tax [8]      If this Court were found to have jurisdiction to hear and determine this application for judicial review and for mandamus, the issue then to be considered becomes whether there was an overpayment of Branch Tax so as to warrant the refund requested. [9]      In determining whether an overpayment has been made and a claimant is entitled to a refund, one must examine the wording of subparagraphs 164(1)(a)(ii) and (1)(b) and subsection 164(7)(b), which provide: 164(1) If the return of a taxpayer's income for a taxation year has been made within 3 years from the end of the year, the Minister (a) may,... ...

The fact that the actual cost to the client may exceed, perhaps significantly, the party and party costs permissible under the Tariff is a factor which may be considered, but generally it should not be determinative. ...

Mateyko asked for waivers, and which were described as waivers only after the deadlines for submitting waivers had passed. [41]       The requirement for waivers was considered by the Federal Court of Appeal in Canadian Marconi Co. v. ...

On the facts before us, there cannot, in my opinion, be any real doubt that there was no such dominant purpose here. [21]      I considered the testimony of Mr. ...

Thus the motion to rectify the procedural shortcoming in the Defence. [2]         The Defendants justify the material for the motion to strike out, some 80 case references, references to other authorities, 319 pages of affidavit material and documents and, as I say, 146 pages of written argument, by saying first, that even if required to shorten the written argument, counsel will in any event refer to all of the material in oral argument; and second, that the issue at stake, section 310 of the Canada Shipping Act, which deals with the detention of vessels by steamship inspectors, has not been judicially considered before and thus, because of its importance, deserves full treatment on a motion to strike out. [3]         I have dealt with the amendment, for the most part, using basic case law. ...

ISSUE [12]            The sole issue to be considered on this preliminary determination of law is whether or not the Refund Claim filed by the plaintiff under section 68 of the Act on January 21, 1988, entitles the plaintiff to claim a refund with respect to FST paid in error on its sales of vapour barriers, notwithstanding the fact that the Refund Claim did not mention vapour barriers. [13]            The parties have agreed that: a)          Should this Court determine that the plaintiff is entitled to a refund, pursuant to section 68 of the Act, for FST paid in error with respect to its sales of vapour barriers for the relevant time period, the Canada Customs and Revenue Agency must conduct an audit, within a reasonable time, of the amount claimed by the plaintiff in order to determine the amount eligible for a refund; or b)          Should this Court determine that the plaintiff is not entitled to a refund, pursuant to section 68 of the Act, for FST paid in error with respect to its sales of vapour barriers for the relevant time period, the within action would be disposed of in its entirety. ...

At paragraph 23, the Court set out the following three requirements which must be met if a delay is to be considered unreasonable: 1.          ...

The notes were available to him as he testified, which he did in a considered and forthright manner. ...

In agreeing with the reasonableness of this amount the Tax Review Board had this to say about the application of Section 85B(1)(d)(ii) of the Act (at p. 1105-06):              In practice, it is considered reasonable to assume that the percentage of any amount of the sale price receivable in a subsequent taxation year that should be taken to represent the profit element included in the said receivable would be the same percentage of that receivable as the gross profit is of the total sale price. ...