RALPH BODINE Appellant v. HER MAJESTY THE QUEEN, 2011 FCA 157
Opinion
Federal Court of Appeal Cour d'appel fédérale Federal Court of Appeal Cour d'appel fédérale Date: 20110509 Docket: A-346-10 Citation: 2011 FCA 157 CORAM: NADON J.A. LAYDEN-STEVENSON J.A. MAINVILLE J.A. BETWEEN: RALPH BODINE Appellant and HER MAJESTY THE QUEEN Respondent Heard at Vancouver , British Columbia, on May 4, 2011. Judgment delivered at Ottawa, Ontario , on May 9, 2011. REASONS FOR JUDGMENT BY: LAYDEN-STEVENSON J.A. CONCURRED IN BY: NADON J.A. MAINVILLE J.A. Date: 20110509 Docket: A-346-10 Citation: 2011 FCA 157 CORAM: NADON J.A. LAYDEN-STEVENSON J.A. MAINVILLE J.A. BETWEEN: RALPH BODINE Appellant
and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT LAYDEN-STEVENSON J.A. [1] Mr. Bodine appeals from the judgment of Sheridan J. of the Tax Court of Canada (the judge) dismissing his appeal from incometax reassessments for the 2000 and 2001 taxation years. This appeal relates only to the 2000 taxation year and concerns the sale of a 20-acre parcel of land near Phoenix, Arizona (Parcel 6). [2] Despite the capable submissions of Mr.
Laird, I am of the view that the appeal should be dismissed. [3] The judge concluded that the sale of Parcel 6 to the Price Company in 2000 constituted an adventure in the nature of trade. [4] The judges conclusion was based on her findings of fact and mixed fact and law with respect to the factors articulated in CanadaSafeway Ltd. v. Canada, 2008 FCA 24, 2008 D.T.C. 6074. The judge carefully and comprehensively considered and analysed theevidence before her.
She concluded, on the basis of that evidence, that as of September 28, 1994, there was a clear intention to convertParcel 6 from a capital asset used in the production of farm income to an item of inventory for sale in the partnerships business (reasonsfor judgment at paras. 39-40).
Based on her appreciation of the evidence, she also concluded, notwithstanding the use of the property forcitrus production between the date of its acquisition by the partnership and the date of its sale, the intention (of the partners or thepartnership) to use the property as inventory in an isolated sales transaction remained constant. [5] The standard of review applicable to the judges findings is established by Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2S.C.R. 235.
Questions of law are reviewed for correctness and the questions of fact and questions of mixed fact and law (absent anextricable legal question) are reviewed for palpable and overriding error. [6] Having again reviewed the transcript, the judges reasons and the submissions of the parties, I conclude that there is evidence inthe record to support the judges conclusion. In other words, the judges decision was one that was open to her on the evidence before her.Contrary to Mr.
Bodines assertion, it was not premised only on the existence of a change in form (the 1994 reorganization) although thatwas reflective of intention. [7] Mr. Bodines argument rests essentially on the judges appreciation of the evidence. Absent palpable and overriding error, thisCourt will not engage in a reassessment of evidence, nor substitute its view for that of the judge. Mr. Bodine has not demonstratedpalpable and overriding error. [8] Accordingly, I would dismiss the appeal with costs. Carolyn Layden-Stevenson J.A. I agree M. Nadon J.A. I agree
Robert M. Mainville J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-346-10 STYLE OF CAUSE: BODINE v THE QUEEN PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: May 4, 2011 REASONS FOR JUDGMENT BY: LAYDEN-STEVENSON J.A. CONCURRED IN BY: NADON J.A. MAINVILLE J.A. DATED: May 9, 2011
APPEARANCES : Gavin Laird D. Lawrence Armstrong FOR THE APPELLANT Michael Taylor Zack Froese FOR THE RESPONDENT SOLICITORS OF RECORD : Armstrong Wellman Victoria , B.C. FOR THE APPELLANT Myles J. Kirvan Deputy Attorney General of Canada FOR THE RESPONDENT
Loading document…