The Minister’s reply, to the taxpayers’ appeals of assessments denying zero-rating of taxable supplies made by them to a Cyprus company (“Lowfroc”) on the basis that Lowfroc was a resident of Canada, pleaded an “assumption” that “at all material times, the controlling mind and management of Lowfroc was in Canada.”
After confirming that the quoted assumption was one of mixed fact and law, Goyette JA further confirmed the finding below that there had been prejudice to the taxpayers and an abuse of process (justifying the striking of this assumption pursuant to Rule 53(1)(c)) given inter alia that this pleading “went to the heart of the appeal” (para. 22) and that the Crown had refused the taxpayers’ request for particulars in this regard, so that the taxpayers accordingly “had few options if they wanted to know what factual assumptions they must demolish in order to succeed in their appeal” (para. 22).