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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. ...

Minister of National Revenue, (1994) 167 N.R. 112. 56    These are examples of the type of change in position by the Crown that Bastarache J. considered unacceptable. ... No. 777, Décary J.A. considered the approach that should be taken to a motion for leave to amend. ... The taxpayer accordingly does not have the burden of destroying facts which were not considered at the time of the assessment. ...

At trial, Webb Wehbe testified that he considered them as employees of the appellant. [19]     Derek Anderson testified that he attended at the appellant's premises every day. ... For example, one unrelated individual, Derek Anderson, who was called to testify, signed exactly the same agreement as the Workers and he was considered by Webb Wehbe to be an employee of the appellant. ... M.N.R., [1988] 2 C.T.C. 2377, at page 2379, 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. ...

", as well as a personal account with the Caisse Populaire Les Grands Boulevards, folio 12371; (admitted) (k)         The unidentified deposits of $85,774, $20,518, $28,225 and $1,191 traced to the commercial bank account were all considered to be business income for 1995, 1996, 1997 and 1998; (l)          At the initial interview, the appellant admitted to the auditor that only 50 percent of the business income had been deposited to the commercial bank account since most customers paid in cash; the auditor consequently taxed each of the partners on all of the unidentified deposits appearing in that account; (denied) (m)        The appellant also alleged that his duties as an employee of 2862-3650 Québec Inc. in 1997 had consisted of making deliveries for a textile company; he worked every week and was paid by cheque or in cash; (admitted) (n)         Analysis of the appellant's personal bank account showed that he had made no weekly deposits to that account; furthermore, 2862-3650 Québec Inc. had no employer number for source deduction purposes, had never filed corporate tax returns and had dissolved its charter in 1997; (o)         The auditor considered that the amount of $23,530 in fact represented income from other sources and consequently disallowed the appellant employment expenses of $8,930; (p)         In making those changes, the auditor considered that, first, the 1997 T4 issued by 2862-3650 Québec Inc. was fake and, second, that no T2200 form, "Declaration of Conditions of Employment ", or supporting documents had been submitted by the appellant; (q)         The full amount of $30,683 in business expenses claimed for the 1998 taxation year was disallowed since the appellant filed no supporting documents in support of his claim; (r)         As a result of the changes made to the 1998 taxation year, the appellant incurred no non-capital losses and consequently could not deduct the amount of $13,133 in computing his taxable income for the 1997 taxation year; (s)         At the objection stage, the appellant alleged that, of the $85,774 located in the business's bank account and attributable to the 1995 taxation year, an amount of $49,500 represented loans taken out by his partner, Pierre Pilon; Pierre Pilon, who did the accounting of the business and who had no personal bank account had, unbeknownst to him, deposited the borrowed amounts and then written cheques in his own name; (t)          The Minister did not accept the appellant's allegations since he had filed no documents or evidence supporting his position and furthermore because the Minister had evidence clearly showing that the amounts he identified as loans in fact represented amounts received by the business for services rendered; (u)         The appellant made a misrepresentation attributable to neglect, carelessness or wilful default in filing his income tax return or in supplying information for the 1995 taxation year; (v)         The appellant knowingly, or under circumstances amounting to gross negligence, made or participated in, assented to or acquiesced in the making of, a false statement or omission in a return for each of the taxation years in issue; he was assessed penalties of $9,338.44, $1,398.74, $1,938.96 and $100 for the 1995, 1996, 1997 and 1998 taxation years. ... Gauthier testified that he then considered as business income for the 1995 taxation year all the unidentified deposits totalling $85,774 traced in the bank statements of the commercial account filed jointly as Exhibit A-1. [11]     The objections raised by the appellant concern:           (i)       the cancellation of the employment income for the 1997 taxation year and its conversion to income from other sources and the disallowance of the expenses incurred in the context of his employment for that same taxation year;           (ii)       the penalty assessed by the Minister on the additional business income for each of the taxation years in issue;           (iii)      the Minister's reassessment for the 1995 taxation year outside the normal reassessment period; and           (iv)      the specific elements outlined below respecting the business income for the 1995 taxation year. ... (iii)      Splitting of business income           The Minister considered the unidentified deposits totalling $85,774 traced to the commercial account as business income for the 1995 taxation year. ...

Buchart must be considered in light of objective criteria such as those mentioned in Molodowich v. ... When can two persons be considered as living in a conjugal relationship? ... [58]      Counsel suggested that it is not sufficient just to equate the requirements of separate and apart and of cohabiting that are considered in other statutes, but you have to look specifically at what the Act has in mind. ...

Thus the question is what facts the Minister considered in assessing and not the reasons why the assessment occurred. [9]            Appellant's counsel agreed in Court that the documents improperly released by the Respondent may be redacted as to reference to third parties. ... Alternatively, he says that all of the foregoing transactions, viewed by themselves, were avoidance transactions, within the meaning of paragraph 245(3)(a) of the Income Tax Act, because they could not reasonably be considered to have been undertaken or arranged primarily for bona fide purposes other than to obtain the said tax benefits, and because they indirectly resulted in the said tax benefits.... ... He says that the issues in this appeal are, as follows: (a)            whether there were tax benefits which the Appellant and BV and PTL obtained from the said transactions, within the meaning of subsection 245(1) of the Income Tax Act, and if so, what they were, (b)            whether these tax benefits resulted from the series of transactions consisting of the said transactions within the meaning of subsection 245(2) and paragraph 245(3)(b) of the Income Tax Act, or alternatively, from the individual transactions constituting the series, within the meaning of paragraph 245(3)(a) of the Act, (c)            whether the said transactions, or any of them, were avoidance transactions, i.e. whether they could not reasonably be considered to have been undertaken or arranged primarily for bona fide purposes other than to obtain the tax benefits, within the meaning of paragraphs 245(3)(a) and (3)(b) of the Income Tax Act, (d)            if the said transactions were avoidance transactions, whether they may reasonably be considered to have resulted, directly or indirectly, in a misuse of subsection 15(8) or subparagraph 95(2)(a)(ii) of the Income Tax Act or in an abuse having regard to the provisions of the Act read as whole, and (e)            assuming that the foregoing questions are answered in the affirmative, whether a denial to the Appellant and to BV and PTL of those tax benefits was reasonable in the circumstances by including in the Appellant's income under Part I of the Income Tax Act the interest received by GAM from BV and PTL and by assessing the Appellant for withholding tax under Part XIII of the Act for failing to deduct or withhold and remit to the Receiver General of Canada the tax payable by BV and PTL in respect of the amounts of the loans made by GAM to BV and PTL. ...

He stated further that all sources of revenue and losses should be considered as one because it was all related to himself. ... Hay that all sources of income should be considered together is not tenable. Each source is to be considered separately. Combining employment income with the farming operation only operates in determining whether farming is a chief source of income. ...

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. ... They were equipped in their training with a presentation that they could use if they wished and which the Appellant considered to be a successful approach, but the individual agents were free to use it, adapt it or discard it as they saw fit. [22] With regard to the mater of control set out in paragraph 6(n) Mr. ... There is virtually nothing in my view, which displaces the clearly expressed intention of the parties in the contract that it be considered a contract for services and not a contract of service. ...