Federal Court of Appeal Decisions

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Date: 20030508

Docket: A-338-02

A-339-02

Citation: 2003 FCA 218

CORAM:        LINDEN J.A.

ROTHSTEIN J.A.

MALONE J.A.

BETWEEN:

MICHAEL EVANS

Appellant

- and -

THE ATTORNEY GENERAL OF CANADA

Respondent

AND BETWEEN:

MICHAEL R. BOSSY

Appellant

- and -

THE ATTORNEY GENERAL OF CANADA

Respondent

                                               Heard at Toronto, Ontario, on May 7, 2003.

                                      Judgment delivered from the Bench at Toronto, Ontario,

on May 7, 2003.

REASONS FOR JUDGMENT OF THE COURT:                                                     ROTHSTEIN J.A.


Date: 20030508

Docket: A-338-02

A-339-02

Citation: 2003 FCA 218

CORAM:        LINDEN J.A.

ROTHSTEIN J.A.

MALONE J.A.

BETWEEN:

MICHAEL EVANS

Appellant

- and -

THE ATTORNEY GENERAL OF CANADA

Respondent

AND BETWEEN:

MICHAEL R. BOSSY

Appellant

- and -

THE ATTORNEY GENERAL OF CANADA

Respondent

                                       REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto, Ontario,

on May 7, 2003)

ROTHSTEIN J.A.

[1]                 These reasons apply to Court File No. A-338-02 and No. A-339-02.


[2]                 In spite of his able argument, counsel for the appellants has not persuaded us that this is a case that warrants intervention by this Court. The appellants concede that Beaubier J. correctly identified the criteria for determining whether an asset should be treated as an investment or a trading asset. However, they say the Trial Judge erred in his application of the criteria to the facts, and that this constitutes an error reviewable on a standard of correctness. (See Housen v. Nikolaisen, 2002 SCC 33).

[3]                 We cannot agree. Had the Trial Judge failed to apply a relevant criterion it may be that he would have erred in law. However, his reasons demonstrate that he explicitly applied all the criteria the appellant says were relevant. Therefore, there is no pure error of law in respect of his application of the criteria which is reviewable on a correctness standard.

[4]                 The appellants' real complaint is that the Trial Judge over-emphasized the intent or motive criterion and largely discarded the other criteria. They characterize this as an error of law. However, they do not say that the Trial Judge ignored the other criteria. The question of emphasis to be given to the various criteria is for the Trial Judge to determine and absent palpable and overriding error, is not to be interfered with by this Court. In any event, we are satisfied, from the reasons, that the Trial Judge did consider the relevant criteria in his determination of the case.


[5]                 While the appellants argue that there were explanations for what they did that might support a different conclusion, we are satisfied that the conclusion reached by the Trial Judge was open to him on the evidence. He drew a number of inferences that were readily apparent from the facts and we cannot say that he made any palpable and overriding error in the inferences he drew.

[6]                 We would dismiss the appeals with costs.

"Marshall Rothstein"

                                                                                                                                                                  J.A.                          


                                                        FEDERAL COURT OF CANADA

APPEAL DIVISION

             Names of Counsel and Solicitors of Record

DOCKET:                                             A-338-02

A-339-02

STYLE OF CAUSE:              MICHAEL EVANS

Appellant

- and -

  

THE ATTORNEY GENERAL OF CANADA

Respondent

   

AND BETWEEN:       

MICHAEL R. BOSSY

Appellant

- and -    

                              THE ATTORNEY GENERAL OF CANADA

Respondent

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       WEDNESDAY, MAY 7TH, 2003

REASONS FOR JUDGMENT

OF THE COURT BY:                       ROTHSTEIN J.A.

DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON MAY 7, 2003

DATED:                                                WEDNESDAY, MAY 8, 2003

APPEARANCES BY:                        Keith Trussler

                                                                                                       For the Appellants

Gerald Chartier             

For the Respondent

SOLICITORS OF RECORD:          Giffen & Partners

London, ON                                              For the Appellants

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent

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