Husky Oil Operations Limited v. The Queen

Husky Oil Operations Limited v. The Queen
Court (s) Database
Tax Court of Canada Judgments
Date
2019-06-18
Neutral citation
2019 TCC 136
File numbers
2017-3308(IT)G
Judges and Taxing Officers
Don R. Sommerfeldt
Subjects
Income Tax Act
Decision Content
Docket: 2017-3308(IT)G
BETWEEN:
HUSKY OIL OPERATIONS LIMITED,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on June 11 and 12, 2018, at Vancouver, British Columbia
By: The Honourable Justice Don R. Sommerfeldt
Appearances:
Counsel for the Appellant:
David Jacyk, Edward Rowe
Counsel for the Respondent:
Carla Lamash
ORDER
Further to the attached Reasons for Order, the following provisions of the Amended Reply (filed on January 26, 2018) are struck out:
(a) paragraph 5 and subparagraphs 8(a), 9(a), 9(b), 10(a), 10(c), 13(b), 13(c), 13(c.1), 13(d), 13(f), 13(g), 18(a), 18(b) and 18(c), with leave to amend; and
(b) subparagraphs 7(b), 9(c), 12(c) and 15(c) and paragraph 26d, without leave to amend.
In addition to the amendments contemplated by subparagraph (a) above, leave is also granted to the Respondent, if desired:
(c) to amend paragraph 26 of the Amended Reply so as to add a provision resiling from the assumption of fact in subparagraph 25(ww) of the Amended Reply;
(d) to delete paragraph 26e of the Amended Reply; and
(e) to make such ancillary or supplementary amendments as may be desired:
(i) to ensure that the document containing the contemplated amendments to the Amended Reply reads smoothly after the deletion of the provisions that have been struck out, and
(ii) to address any other concerns or suggestions noted in the Reasons in respect of which there was no striking out.
If the Respondent desires to amend the Amended Reply, the document containing such amendments to the Amended Reply shall be filed with the Registry and served on the Appellant no later than 60 days after the date of this Order.
Costs of this Motion will be costs in the cause.
Signed at Ottawa, Canada, this 18th day of June 2019.
“Don R. Sommerfeldt”
Sommerfeldt J.
Citation: 2019 TCC 136
Date: 20190618
Docket: 2017-3308(IT)G
BETWEEN:
HUSKY OIL OPERATIONS LIMITED,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Sommerfeldt J.
I. INTRODUCTION
[1] These Reasons relate to a Motion brought by Husky Oil Operations Limited (“HOOL”) for an order striking out certain paragraphs of the Amended Reply filed by the Crown on January 26, 2018.
II. BACKGROUND
[2] HOOL is a wholly-owned subsidiary of Husky Energy Inc. (“HEI”), which is a publicly traded corporation and the ultimate parent corporation of a group of corporations that conduct an integrated energy business. As pleaded by HOOL in its Notice of Appeal, HOOL’s resource activities are carried out through a partnership, Husky Oil Limited Partnership (“HOLP”), in respect of which HOOL had a 99% partnership interest in 2004 and, according to the Crown’s Amended Reply, HOI Resources Co. (“HOIRC”), a wholly-owned subsidiary of HOOL, had a 1% partnership interest in 2004.
[3] In 2004, HOOL entered into a number of transactions (the “Transactions”) [1] with various financial institutions for the purpose of hedging the risk of a future fluctuation in the price of crude oil or natural gas. Counsel for HOOL described the Transactions as swap transactions; counsel for the Crown described the Transactions as hedge transactions. For the purposes of these Reasons, I make no determination as to whether the Transactions were swaps or hedges.
[4] The Transactions were settled for cash (with no physical delivery of crude oil or natural gas) in 2004. HOOL reported losses (the “Losses”) incurred from the Transactions (net of associated foreign-exchange gains and losses) in the aggregate amount of $561,295,272.
[5] Taking the position that HOOL was not involved in the production of oil and gas, HOOL did not include the Losses in the computation of its resource allowance for the purposes of paragraph 20(1)(v.1) of the Income Tax Act (the “ITA”). The Canada Revenue Agency (the “CRA”), on behalf of the Minister of National Revenue (the “Minister”), took the position that the Losses were to be included in computing HOOL’s resource allowance entitlement, and accordingly reduced HOOL’s deduction under paragraph 20(1)(v.1) by $105,242,864 for 2004, as set out in a notice of reassessment dated May 16, 2017 (the “Notice of Reassessment”).
[6] On or about August 7, 2014, HOOL filed a notice of objection (the “Notice of Objection”) in respect of the reassessment (the “Reassessment”) that was the subject of the Notice of Reassessment. In the context of the Transactions and the resource allowance, HOOL stated the following as being the relevant facts:
4. HOOL is a taxable Canadian corporation that, among other things, holds a 99% general partnership interest in the Husky Oil Limited Partnership (“HOLP”).
5. HOLP is a limited partnership formed under the laws of Alberta, with a tax year end of January 31st. HOLP owns and operates all the Western Canadian producing properties of the Husky group of companies.
6. HOOL did not have any direct crude oil or natural gas production in its taxation year ending December 31, 2004. The only production occurred in HOLP.
7. In 2003 HOOL, for and on behalf of itself and not in its capacity as a general partner of HOLP, entered into fifty two separate swap transactions (collectively, referred to herein as the “Swaps”) with eight financial institutions. The Swaps became effective during 2004. HOLP did not enter into any Swaps or other similar contracts.
8. Under the Swaps, HOOL was entitled to receive a fixed price on a notional volume of crude oil or natural gas and HOOL was required to pay to the counterparty the floating price on the same notional volume of crude oil or natural gas as established by market indices.
9. The Swaps were cash settled transactions and no physical delivery of crude oil or natural gas was required or contemplated by either HOOL or the counterparties.
10. The amounts owing under the Swaps were calculated daily on the notional volumes and payable monthly by the contracting parties, in cash, to the extent of the net payment owed by either party for a given month.
11. In aggregate, the index prices of crude oil and natural gas exceeded the fixed prices in 2004 resulting in HOOL making settlement payments totaling $561,295,272 to various counterparties under the Swaps.
12. These payments were reported in the December 31, 2004 financial statements and tax returns of HOOL as losses from non-resource activities.
13. The Reassessment incorporates adjustments included in a previous reassessment that was issued by the Minister on November 5, 2009 to include the losses resulting from the settlement of the Swaps in the calculation of gross resource profits, resource profits and adjusted resource profits of HOOL and thereby reducing HOOL’s resource allowance by $105,242,864.
14. The Reassessment also incorporates adjustments included in the previous November 5, 2009 reassessment that utilized $105,242,864 of tax pools available to HOOL to offset the increase in taxable income arising from the reduction to resource allowance. [2]
[7] After the Minister confirmed the reassessment, HOOL filed a Notice of Appeal on August 10, 2017. On December 21, 2017, the Attorney General of Canada (the “AGC”) filed a Reply. Subsequently, on January 26, 2018, the AGC filed the Amended Reply, which is the subject of this Motion.
III. ANALYSIS
A. Legal Authorities
(1) Rules
[8] Subsection 49(1) of the Tax Court of Canada Rules (General Procedure) (the “Rules”) sets out the requirements to be met by a reply in respect of the facts pleaded in a notice of appeal, the facts assumed by the Minister and other material facts. Paragraphs 49(1)(a) through (e) of the Rules state:
49(1) Subject to subsection (1.1) [which is not relevant here], every reply shall state
(a) the facts that are admitted,
(b) the facts that are denied,
(c) the facts of which the respondent has no knowledge and puts in issue,
(d) the findings or assumptions of fact made by the Minister when making the assessment,
(e) any other material fact….
To put the above provisions in context, the preceding Rule (i.e., Rule 48) states that every notice of appeal is to be in one of four forms. In the case of a notice of appeal in the General Procedure, that form is Form 21(1)(a). Item (c) of the sample notice of appeal set out in Form 21(1)(a) indicates that the appellant is to relate the material facts relied on. Although paragraphs 49(1)(a), (b) and (c) of the Rules do not expressly state the source of the facts that are to be admitted or denied or put in issue (because the respondent has no knowledge thereof), it is clear from the context that paragraphs 49(1)(a), (b) and (c) are referring to the facts set out in the particular notice of appeal. From this it would follow that, when the AGC is admitting facts, denying facts or stating that the AGC has no knowledge of facts, the admission, denial or statement, as the case may be, should be confined to facts set out in the notice of appeal.
[9] HOOL’s motion was brought under subsection 53(1) of the Rules, which reads as follows:
53(1) The Court may, on its own initiative or on application by a party, strike out or expunge all or part of a pleading or other document with or without leave to amend, on the ground that the pleading or document
(a) may prejudice or delay the fair hearing of the appeal;
(b) is scandalous, frivolous or vexatious;
(c) is an abuse of the process of the Court; or
(d) discloses no reasonable grounds for appeal or opposing the appeal.
(2) Jurisprudence
[10] I will begin by reviewing the relevant jurisprudence to extract the applicable legal principles, and will then apply those principles to the issues raised in respect of each of the paragraphs of the Amended Reply that are the subject of this Motion.
(a) Pleadings
[11] The basic principle applicable to pleadings, which has been stated in Holmested and Watson and which has been applied in this Court, is the following:
This is the rule of pleading: all of the other pleading rules are essentially corollaries or qualifications to this basic rule that the pleader must state the material facts relied upon for his or her claim or defence. The rule involves four separate elements: (1) every pleading must state facts, not mere conclusions of law; (2) it must state material facts and not include facts which are immaterial; (3) it must state facts and not the evidence by which they are to be proved; (4) it must state facts concisely in a summary form. [3]
[12] In pleading the assumptions of fact underlying an assessment, the Crown:
(a) should refrain from the practice of pleading not only the material facts that justified the assessment, but also the evidence that led the auditor or assessor to formulate those assumptions in his or her mind, often accompanied by assumptions of law or of mixed fact and law;
(b) should plead simply the material facts of the case, i.e., those facts that, if true, justified the Minister in making the assessment on the Minister’s understanding of the law. [4]
(b) Motion to Strike
[13] The principles to be applied by the Court in hearing a motion to strike out a pleading, under section 53 of the Rules, were summarized by former Chief Justice Bowman as follows:
(a) The facts as alleged in the impugned pleading must be taken as true subject to the limitations stated in Operation Dismantle Inc. v. Canada, [1985] 1 S.C.R. 441 at 455. It is not open to a party attacking a pleading under Rule 53 to challenge assertions of fact.
(b) To strike out a pleading or part of a pleading under Rule 53 it must be plain and obvious that the position has no hope of succeeding. The test is a stringent one and the power to strike out a pleading must be exercised with great care.
(c) A motions judge should avoid usurping the function of the trial judge in making determinations of fact or relevancy. Such matters should be left to the judge who hears the evidence. [5]
Although the above statement was made in the context of a motion to strike portions of a notice of appeal, the same principles apply to a motion to strike portions of a reply. [6]
[14] Concerning the “plain and obvious” test to be applied in considering a motion to strike, the following comments are applicable:
17. … A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action…. Another way of putting the test is that the claim has no reasonable prospect of success….
25. … The question is whether, considered in the context of the law and the litigation process, the claim has no reasonable chance of succeeding. [7] [Emphasis in original.]
[15] Concerning the applicable test, Associate Chief Justice Rossiter (as he then was) stated:
… Only if the position taken in the Reply is certain to fail because it contains a radical defect should the relevant portions of the Respondent’s Reply be struck. [8]
[16] Concerning the burden of proof in the context of paragraph 53(1)(b) or (c) of the Rules in a motion to strike, Justice D’Auray stated:
… in a motion to strike, the burden rests with the party attacking the pleading or portions thereof to show that it is clear and obvious that the pleading is scandalous, frivolous or vexatious, or that it is otherwise an abuse of the process of the Court. [9]
[17] Also of note is the following comment by Chief Justice Bowman:
… However much jurisprudence may surround the words “scandalous, frivolous or vexatious, or abuse of the process of the Court”, they are nonetheless strong, emotionally charged and derogatory expressions denoting pleading that is patently and flagrantly without merit. Their application should be reserved for the plainest and most egregiously senseless assertions…. [10]
[18] The cases referenced above make it clear that the “plain and obvious” test, which is a stringent test, sets a high threshold to be met before a pleading (or portions thereof) will be struck out.
(c) Overreaching Admissions
[19] HOOL has submitted that some of the admissions of fact made by the AGC in the Amended Reply purport to admit facts that were not pleaded by HOOL in the Notice of Appeal. Counsel for HOOL described those admissions as “phantom admissions”; in these Reasons, I will call them “overreaching admissions.”
[20] In Strother, former Chief Justice Rip stated:
It is poor and improper pleading when a litigant admits or denies a fact in a pleading but couples the admission or denial with a conclusion of law or some extraneous comments that add nothing to the process. [11]
[21] In Xu, Justice Mogan stated that it is inappropriate in a reply to purport to admit certain facts when those facts were not alleged in the notice of appeal. Even if the notice of appeal uses an imprecise word, it is not permissible in the reply, when purporting to admit the particular fact, to interpret the imprecise word by substituting some other word for it. [12] Justice Mogan stated the following:
A defendant in civil litigation is permitted to admit only those facts alleged by a plaintiff. The admission should be a “stand alone” event, not clouded by the defendant’s own allegations in the subject area of the admission. [13]
Even though the above statement was couched in terms relating to civil litigation (such as plaintiff and defendant), it is clear that Justice Mogan intended the principle to apply to tax litigation, if the AGC or the Crown, in a reply, is purporting to admit facts that were not pleaded by the taxpayer in the notice of appeal.
(d) Denials
[22] Some of the provisions within the Amended Reply that HOOL seeks to have struck out contain denials of facts pleaded in the Notice of Appeal. Although there have been fewer interlocutory proceedings concerning denials than admissions, the jurisprudence has established several principles. The word “denies” is now viewed as being synonymous with “does not admit.” [14] In other words, a fact pleaded in a notice of appeal and denied in a reply must be proven by the appellant. Paragraph 49(1)(b) of the Rules does not require the Crown to explain the basis for a denial of a fact pleaded in a notice of appeal. [15] The Crown is free to deny the obvious, even if the denial is absurd. [16]
(e) Pleading “No Knowledge”
[23] HOOL has submitted that, in some instances, the Amended Reply states that the AGC has no knowledge of a particular fact pleaded in the Notice of Appeal, notwithstanding that the fact pleaded in the Notice of Appeal corresponds very closely to a fact that was assumed by the Minister when making the Reassessment.
[24] In LBL Holdings, Justice Graham stated that it is not appropriate for the Minister to claim that she has no knowledge of facts that are entirely within the Minister’s knowledge. Similarly, Justice Graham stated that the Minister is not permitted to claim that she has no knowledge of her own knowledge. [17]
[25] It appears that the Minister and the AGC are now of the view that some of the facts assumed by the Minister when reassessing HOOL were not actually correct. Counsel for HOOL is of the view that the AGC is pleading “no knowledge” as an indirect and inappropriate way of resiling from those assumed facts. More will be said about this below.
(f) Assumptions: Facts, Not Law
[26] It is axiomatic that the portion of a reply that sets out the assumptions made by the Minister is to contain facts, not law, as stated by the Federal Court of Appeal in Anchor Pointe:
25. I agree that legal statements or conclusions have no place in the recitation of the Minister’s factual assumptions….
26. … The Minister may assume the factual components of a conclusion of mixed fact and law. However, if he wishes to do so, he should extricate the factual components that are being assumed so that the taxpayer is told exactly what factual assumptions it must demolish in order to succeed. It is unsatisfactory that the assumed facts be buried in the conclusion of mixed fact and law. [18]
(g) Abandoning Assumptions
[27] The Minister’s assumptions of fact are set out in paragraph 25 of the Amended Reply. HOOL is not seeking to have any of those assumed facts struck from the Amended Reply. However, HOOL has raised concerns that, in other portions of the Amended Reply, the AGC has qualified, reinterpreted or recharacterized some of the assumptions in such a manner as to constitute an inappropriate abandonment of those assumptions. The jurisprudence has established that the AGC is not bound by the assumptions on which the Minister relied. However, to resile from or abandon an assumption, an alternative position must be put forward, as explained by the Federal Court of Appeal in Aventis Pharma:
3. Both parties agree that these questions [that the AGC hoped to ask at a continuation of the examination for discovery of the taxpayer] pertain to a series of facts that the Minister of National Revenue … relied on and accepted as proven when issuing the assessments under appeal but that were nonetheless denied or ignored by the Crown in its reply to the notice of appeal. Importantly, the Crown did not advance any alternative position to justify the assessments in its reply to the notice of appeal….
7. According to counsel for the Crown, the Attorney General is not bound by the assumptions of fact that the Minister relied on to issue his assessments. Just as the Attorney General has the obligation to faithfully mirror in his pleadings the facts relied on by the Minister in support of his assessments (since only those facts benefit from the legal presumption in favour of the Minister), he also has the option of calling those facts into question if he is not persuaded of their accuracy….
9. … It is true that the Attorney General is not bound by the assumptions relied on by the Minister to issue his assessments and is entitled to defend an assessment using one or several alternative bases to those relied on by the Minister.
10. However, as mentioned above, the Attorney General did not advance an alternative position in the case at hand. From the Attorney General’s perspective, the idea of calling into question the Minister’s assumptions of fact without offering an alternative position is, if the matter were to end there, nonsensical…. [19]
Thus, to the extent that the AGC desires to resile from, or abandon, any of the assumptions of fact made by the Minister, the AGC should be permitted to do so, provided that he advances an alternative position to justify the particular reassessment.
[28] In offering an alternative position, the need for clarity, without dissimulation, was explained by Justice Archambault, as follows:
If the respondent decides to defend an assessment on a basis different from that used when making the assessment, she should frankly acknowledge this, without any dissimulation. Taxpayers are entitled to know clearly who bears the burden of proof before their appeals are heard. [20]
[29] In deciding a motion in respect of the above-referenced Loewen litigation, Associate Chief Justice Bowman (as he then was) stated:
Can the Crown plead a fact that is diametrically opposed to what the Minister assumed on assessing? I think it can but it takes on the onus of proving it and it must go further and specifically repudiate the Minister’s assumption…. It is important to emphasize here the necessity of the Minister’s pleading honestly all assumptions made on assessing, including those that assist the taxpayer. [21] [Emphasis in original.]
Although the Federal Court of Appeal set aside the Order issued by Associate Chief Justice Bowman, the Federal Court of Appeal did not disagree with or otherwise mention his statement to the effect that, if the Crown pleads a fact that is diametrically opposed to a fact assumed by the Minister when assessing, the Crown must specifically repudiate the Minister’s assumption.
(h) Deliberately Omitting Assumptions
[30] When pleading the assumed facts on which the Minister based a particular assessment, the AGC has an obligation to plead all of those facts, [22] completely and accurately, [23] even if one or more of those facts may, in the view of the AGC, be considered irrelevant, [24] may not support the assessment, [25] or may assist the appellant. [26] These principles were summarized by former Associate Chief Justice Bowman (as he then was) in Mungovan, as follows:
The respondent has an obligation to disclose all of the facts upon which the assessment was based. Conceivably some of the facts assumed are wrong or irrelevant. They should still be disclosed. I would not wish to discourage the full disclosure of facts. The mere fact that the lawyer drafting the reply may have thought an assumption was wrong, irrelevant or embarrassing to the Crown’s case is no reason for failing to disclose it. Indeed, in Bowens v The Queen, 94 DTC 1853, aff’d 96 DTC 6128, the effect of failing to plead assumptions that were central to an assessment was discussed. The Federal Court of Appeal at p. 6129 suggested that the Crown’s Reply might have been struck out for failing to plead a fact that was at the basis of the assessment. [27]
It is improper for the Crown not to plead an assumed fact on which the validity of a particular reassessment depended. [28]
(i) Repetition and Redundancy
[31] In Strother, in considering a motion to strike out repetitive and redundant portions of a reply, former Chief Justice Rip quoted the following statement made by Master Haberman of the Ontario Superior Court of Justice in Mudrick:
Repetition should be avoided. Superfluous detail should be eliminated. Editorialized comments should be removed…. This is not “the last chance” to tell the whole story — it is only an overview of what the case will be about…. [29]
Former Chief Justice Rip then quoted the passage from Holmested and Watson that is reproduced in paragraph 11 above, and went on to discuss the fourth requirement in that quotation, to the effect that a pleading should state facts concisely in a summary form, after which he stated:
The fourth requirement is particularly relevant to this appeal. A repetitive pleading is not concise. It does nothing to help in understanding the issues. [30]
Former Chief Justice Rip then quoted from two other decisions, which respectively stated that “[u]nnecessarily verbose and repetitive pleadings create uncertainty” and that provisions in a pleading may be struck out “on the grounds that they are … tautological, redundant [or] repetitious,” before going on to conclude, in respect of this particular topic, that “excessive repetition within [a pleading] is superfluous and undermines the goals of conciseness and certainty,” such that “repetitive portions [of a pleading] should be struck.” [31]
(j) Prolixity
As noted above, a pleading should state facts concisely in a summary form. [32] However, while brevity is to be encouraged, prolixity (in and of itself, and provided that there is no repetition or redundancy) is not necessarily a ground for striking out a pleading, as indicated by the Federal Court of Appeal:
82. The reply is unusually long….
83. Pleadings are not necessarily objectionable merely because of their length. In this case, the judge correctly noted that the reply contains unnecessary and repetitious detail, and lengthy references to evidence. [33]
(k) Inconsistency
[32] Subsection 51(2) of the Rules confirms that inconsistent allegations may be made in a pleading:
51(2) A party may make inconsistent allegations in a pleading where the pleading makes it clear that they are being pleaded in the alternative.
Hence, when making inconsistent allegations in a pleading, it is imperative that the pleading make it clear that those allegations are pleaded in the alternative.
[33] In Loewen, the Federal Court of Appeal stated:
The constraints on the Minister that apply to the pleading of assumptions do not preclude the Crown from asserting, elsewhere in the reply, factual allegations and legal arguments that are not consistent with the basis of the assessment. If the Crown alleges a fact that is not among the facts assumed by the Minister, the onus of proof lies with the Crown. [34]
[34] In 1072174 Ontario, former Chief Justice Bowman made the following comments about inconsistent pleadings:
16. I agree … that there are inconsistencies in the Crown’s pleading of assumptions…. These are inconsistencies. It is theoretically possible, I suppose, that the assessor or assessors can make inconsistent assumptions. This may well relieve the appellant of the traditional onus. The Crown can assert facts that are inconsistent with assumptions if it is prepared to accept the onus….
19. … I agree that the Reply contains inconsistencies but then the Crown’s position itself seems to build on the appellant’s alleged inconsistencies. The appellant’s attempt to make capital of the Crown’s perceived inconsistencies creates a procedural anomaly that can, in my view, best be sorted out by a trial judge who hears all of the evidence…. I do not see how the taxpayer can be relieved of the obligation of proving its case or can have the assessment vacated just because the Minister has come up with some new ideas in the Reply that may be inconsistent with the basis on which the assessment was made. Whether the inconsistency changes where the onus of proof lies … is not something that can be dealt with in a motion to strike. It requires a trial. I do not think that a motion to strike is the way to resolve these problems. [35]
Thus, while some of the concerns or shortcomings discussed in parts (c), (e), (f), (g) and (i) above may be grounds for striking out some or all of a pleading, it seems that, in the case of inconsistencies in a pleading, where it is clear that the inconsistencies are pleaded in the alternative, in many situations the preferred course, particularly in respect of the burden of proof, may be to defer the matter to the trial judge.
B. Impugned Paragraphs
[35] HOOL’s Amended Notice of Motion seeks an order striking out paragraphs 5, 7-15, 18-20, 26 and 26d of the Amended Reply. I will consider each of those paragraphs separately.
(1) Paragraph 5 of the Amended Reply
[36] Paragraph 5 of the Amended Reply relates to paragraph 7 of HOOL’s Notice of Appeal, which reads as follows:
7. HOOL’s resource activities are carried out through a partnership, Husky Oil Limited Partnership (“HOLP”).
Paragraph 5 of the Amended Reply reads as follows:
5. With respect to paragraph 7 of the Notice of Appeal, the AGC [i.e., the Attorney General of Canada]:
a) admits only that Husky Oil Operations Ltd. (hereinafter referred to as “HOOL” or the Appellant as the context requires) held a 99% partnership interest in Husky Oil Limited Partnership (“HOLP”);
b) admits the remaining 1% partnership interest in HOLP was held by HOI Resources Co. (“HOIRC”) which is a wholly-owned subsidiary of HOOL;
c) denies that in the 2004 Taxation Year any of HOOL’s exploration and development activities were carried out through HOLP;
d) has no knowledge of what is encompassed in the Appellant’s use of the term “resource activities”; and
e) as such, the AGC has no knowledge of and puts in issue the remaining allegations of fact in that paragraph. [36]
[37] To assist in the analysis of paragraph 5 of the Amended Reply, it is helpful to compare that paragraph with some of the assumptions of fact made by the Minister, which are set out in paragraph 25 of the Amended Reply, as follows:
25. In determining the Appellant’s tax liability for the 2004 taxation year, the Minister made the following assumptions of fact:…
j) HOOL holds a 99% interest in HOLP.
k) The remaining 1% interest in HOLP is held by HOIRC, a wholly-owned subsidiary of HOOL….
p) HOOL’s resource activities on certain producing properties are carried out through HOLP.
[38] Subparagraphs 5(a) and (b) of the Amended Reply purport to admit facts that go beyond those actually pleaded in paragraph 7 of the Notice of Appeal, such that they contravene the principles enunciated in Xu and Strother. [37] In other words, those subparagraphs purport to admit facts that were not alleged by HOOL in paragraph 7 of the Notice of Appeal. Subject to the next paragraph, it is certainly acceptable for the AGC to plead that HOOL held a 99% partnership interest in HOLP and that HOIRC held the remaining 1% partnership interest in HOLP, but the AGC should not so plead under the guise of admitting some or all of the facts pleaded in paragraph 7 of the Notice of Appeal, as that paragraph simply stated that “HOOL’s resource activities are carried out through a partnership, … HOLP….”
[39] As indicated above, subparagraphs 5(a) and (b) of the Amended Reply set out the AGC’s understanding of the partnership interests of HOOL and HOIRC in HOLP (99% and 1% respectively). These are repetitive or redundant statements, as the same allegations are contained in subparagraphs 25(j) and (k) of the Amended Reply. [38] Given that paragraph 7 of the Notice of Appeal makes no mention of the respective partnership interests in HOLP, there is no need to include in subparagraphs 5(a) and (b) of the Amended Reply, in the form of an overreaching admission, the same factual statements that are set out in subparagraphs 25(j) and (k).
[40] Subparagraph 5(c) of the Amended Reply contains a denial by the AGC that in 2004 HOOL’s “exploration and development activities” were carried out through HOLP, but paragraph 7 of the Notice of Appeal actually pleads that HOOL’s “resource activities” are carried out through HOLP. It seems, but is not clear, that the AGC might be taking the position that the term “resource activities” is broader than the term “exploration and development activities” and that only the latter are the subject of that particular denial.
[41] As noted, in subparagraph 5(c) of the Amended Reply “the AGC … denies that in the 2004 Taxation Year any of HOOL’s exploration and development activities were carried out through HOLP.” That denial should be compared to the assumption of fact made by the Minister in determining HOOL’s tax liability for the 2004 taxation year, as set out in subparagraph 25(p) of the Amended Reply as follows:
HOOL’s resource activities on certain producing properties are carried out through HOLP.
If the term “exploration and development activities” comes within the term “resource activities,” the denial in subparagraph 5(c) appears to be inconsistent with the assumption in subparagraph 25(p). This is unacceptable, given that the Amended Reply does not make it clear that subparagraphs 5(c) and 25(p) are being pleaded in the alternative. [39]
[42] In subparagraph 5(d) of the Amended Reply, the AGC states that he had no knowledge of what is encompassed in HOOL’s use of the term “resource activities”; [40] however, the AGC uses that very term, “resource activities,” in subparagraph 25(p) of the Amended Reply, as quoted above. I acknowledge that perhaps the AGC is of the view that the Minister and HOOL each ascribed different meanings to the term “resource activities”; however, I find the possible inconsistency between subparagraphs 5(d) and 25(p) of the Amended Reply to be confusing, as the Amended Reply does not make it clear that those subparagraphs are being pleaded in the alternative.
[43] That leaves subparagraph 5(e) of the Amended Reply, in which the AGC states that he “has no knowledge of and puts in issue the remaining allegations of fact in” paragraph 7 of the Notice of Appeal. Collectively, subparagraphs 5(a), (b), (c) and (d) of the Amended Reply specifically address (and, in some cases, go beyond) each of the allegations of fact in paragraph 7 of the Notice of Appeal. Therefore, subparagraph 5(e) of the Amended Reply is redundant.
[44] To summarize, paragraph 5 of the Amended Reply should be struck out, with leave to amend.
(2) Paragraph 7 of the Amended Reply
[45] Paragraph 7 of the Amended Reply relates to paragraph 10 of the Notice of Appeal, which reads as follows:
10. Although HOOL acquires “Canadian resource properties” (as defined in subsection 66(15) of the Act) and carries out exploration and development activities on such properties, HOOL transfers the properties to HOLP prior to the commencement of any production therefrom.
Paragraph of 7 of the Amended Reply reads as follows:
7. With respect to paragraph 10 of the Notice of Appeal, the AGC:
a) admits that, in its 2004 Taxation Year, HOOL carried out exploration and development activities on properties that fall within the definition of “Canadian resource properties” (as that term is defined in subsection 66(15) of the Act);
b) admits that, on February 1, 2003, pursuant to a program which the Appellant called “SWIFT”, HOLP transferred (via quitclaim, surrender and assignment of interest agreement) undeveloped properties and leases to HOOL;
c) states that the remainder of the allegations in this paragraph are vague and uncertain as the Appellant does not set out the time period for which it alleges that HOOL acquired “Canadian resource properties” or transferred them and, as such, the AGC has no knowledge of and puts in issue the remaining allegations of fact; and
d) for greater certainty, the AGC also has no knowledge of, and puts in issue, what properties or bundle of property rights were transferred, when any property rights were transferred, how they were transferred to HOLP and all other particulars of such transfers.
[46] To appreciate the concerns raised by HOOL, it is helpful to set out a few other provisions of the Amended Reply. According to HOOL, paragraph 10 of the Notice of Appeal was intended to paraphrase certain of the Minister’s assumptions of fact, which, according to HOOL, were originally stated on pages 2 and 3 of the Report on Objection. [41] Some of those assumed facts were subsequently set out in paragraphs 25(l), (m) and (n) of the Amended Reply, as follows:
25. In determining the Appellant’s tax liability for the 2004 taxation year, the Minister made the following assumptions of fact:…
l) HOOL acquired properties that met the definition of “Canadian resource properties” in the Act (the “Properties”).
m) HOOL conducts the exploration and development activities on the Properties.
n) Whenever a successful well is drilled, HOOL transfers that property to HOLP so HOOL can have access to the resulting Canadian Exploration Expenses and Canadian Development Expenses (as those terms are used in the Act) in the current year but defer recognizing income for a year.
When the original Reply was amended, the following provision was inserted as paragraph 26b, under the heading “Other Material Facts”: [42]
26b. On February 1, 2003, pursuant to a program which the Appellant called “SWIFT”, HOLP transferred (via quitclaim, surrender and assignment of interest agreement) undeveloped properties and leases to HOOL.
[47] Turning to the analysis of paragraph 7 of the Amended Reply, subparagraph 7(a), in essence, admits the first clause in paragraph 10 of the Notice of Appeal. I see nothing problematic with subparagraph 7(a) of the Amended Reply; therefore, there is no basis for striking out that subparagraph.
[48] Moving to the next subparagraph in paragraph 7 of the Amended Reply, it appears that there might be a typographical error in subparagraph 7(b), as it is my understanding (based on paragraph 10 of the Notice of Appeal) that, subsequent to the completion of exploration and development activities, the properties were actually transferred by HOOL to HOLP, and not by HOLP to HOOL, as stated in subparagraph 7(b) of the Amended Reply. However, it is possible that the AGC is actually referring to properties that were owned by HOLP and then transferred to HOOL, but, if such is the case, those properties would not be the properties referred to in paragraph 10 of the Notice of Appeal, and, therefore, should not be discussed in paragraph 7 of the Amended Reply, given that paragraph 7 of the Amended Reply is responding to paragraph 10 of the Notice of Appeal.
[49] At the hearing of this motion, counsel for the Crown stated that she will change the word “admits,” which is the opening word of subparagraph 7(b) of the Amended Reply, to “states.” Without that change, subparagraph 7(b) would be an overreaching admission. However, for the reason stated in the next paragraph of these Reasons, that change will not be necessary.
[50] The main concern in respect of subparagraph 7(b) of the Amended Reply is its repetitiveness. After the first two words of subparagraph 7(b), that subparagraph and paragraph 26b of the Amended Reply are precisely the same, including the characterization of HOLP as the transferor and HOOL as the transferee of the undeveloped properties and leases. Thus, there is clearly a redundancy. As subparagraph 7(b) is located under the subheading “Facts admitted, denied or of which no knowledge” and paragraph 26b is found under the heading “Other Material Facts,” which is where it properly belongs, subparagraph 7(b) should be struck out.
[51] HOOL is of the view that subparagraphs 7(c) and (d) of the Amended Reply are an attempt by the Crown to resile from the assumption in subparagraph 25(n) of the Amended Reply, in which the Minister assumed that “Whenever a successful well is drilled, HOOL transfers that property to HOLP….” I do not read subparagraphs 7(c) and (d) in the manner suggested by HOOL; rather, I see those subparagraphs as merely referencing the transfer details of which the AGC has no knowledge.
[52] To summarize, subparagraph 7(b) of the Amended Reply should be struck out, without leave to amend, given that virtually the same statement is set out in paragraph 26b of the Amended Reply. Subparagraphs 7(a), (c) and (d) of the Amended Reply are not to be struck out.
(3) Paragraph 8 of the Amended Reply
[53] Paragraph 8 of the Amended Reply relates to