Evans v. Canada (Attorney General)

Evans v. Canada (Attorney General) Court (s) Database Federal Court of Appeal Decisions Date 2003-05-08 Neutral citation 2003 FCA 218 File numbers A-338-02 Decision Content 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