Words and Phrases - "trial and error"

The taxpayer (“JTR”) undertook a project in 2008 (the “Fire Curtain Project”) and in 2009 (the “Manual Override Project”) to solve two problems that it had encountered in its business of designing, manufacturing and installing theatrical rigging. The Fire Curtain Project successfully developed a technique for producing a controlled descent of a fire curtain without using counterweights (which consumed space.) The Manual Override Project successfully developed a technique for dealing with an issue in opening and closing curtains after there had been a power outage that eliminated the memory of a limit switch and, therefore, its ability to help control the movement of the curtain. Both projects were performed by employees with no science degrees or qualification as professional engineers, and involved trying out different combinations and configurations of standard equipment and devices to identify what could produce the desired result.

Sommerfeldt J found that this work was routine engineering and otherwise failed many of the tests enunciated in Northwest Hydraulic, so that it did not qualify as scientific research and experimental development. In the course of so finding, he stated (at para. 40) that “there are several cases which, while not saying so explicitly, suggest that trial and error may well fall outside the scientific method” and that the activities in the first project and the reconfiguring steps in the second project “seemed more in keeping with trial and error than with the scientific method” (at para. 42 re the Manual Override Project, similarly at para. 41 re the Fire Curtain Project).

He concluded (at para. 53):

JTR has failed to adduce sufficient evidence to establish that those activities did not constitute routine engineering, that there was technological uncertainty in respect of the Fire Curtain Project and the Manual Override Project, that the scientific method was followed, and that technological advancements were achieved in respect of each project.