Tax Court of Canada Judgments

Docket: 95-978(IT)G

BETWEEN:

GEDDES CONTRACTING CO. LTD.,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

____________________________________________________________________

Appeals heard on March 3, 4 and 5, 2003, at Vancouver, British Columbia,

By: The Honourable Justice E.A. Bowie
Appearances:
Counsel for the Appellant:	John W. Bilawich and Robert D. Holmes
Counsel for the Respondent:	Robert Carvalho

____________________________________________________________________

JUDGMENT

The appeals from assessments of tax made under the Income Tax Act for the taxation years ended April 30, 1986, April 30, 1988, June 29, 1988 of a predecessor corporation of the Appellant and taxation year ended April 30, 1989 of the Appellant are dismissed, with costs.

Signed at Ottawa, Canada, this 6th of January, 2005.

"E.A. Bowie"

Bowie J.

Citation: 2005TCC6

Date: 20050106

Docket: 95-978(IT)G

BETWEEN:

GEDDES CONTRACTING CO. LTD.,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR JUDGMENT

BowieJ.

[1]      These appeals are brought from reassessments under the Income Tax Act (the Act) relating to the taxation years ending April 30, 1986, April 30, 1988 and June 29, 1989 of a predecessor corporation of the Appellant, and to the taxation year of the Appellant ending April 30, 1989. The central issue in the appeals is whether the Appellant[1] and certain other persons successfully entered into a partnership when they collectively acquired a 100% interest in a U.S. partnership known as Grand Bell from certain residents of the United States of America in May 1988.

[2]      These appeals were begun in March 1995, and they came on for trial before me in March 2003. Up to that point in the proceedings the Appellant had not asserted that any of the reassessments under appeal were statute-barred. It is clear from the pleadings that the Minister of National Revenue had assessed the Appellant's predecessor company for its taxation year ended April 30, 1986 initially on June 25, 1987, and had reassessed it to carry back a non-capital loss from the Appellant's taxation year ending June 29, 1988. This non-capital loss for 1988 had been claimed by the Appellant as its share of the non-capital loss for that year of the Grand Bell partnership[2]. It was not until February 20, 1992 that the Minister reassessed the Appellant for 1988 to disallow this non-capital loss, and at the same time reassessed the predecessor's year ended April 30, 1986 to disallow the carry-back of a portion of it. George Agazarian was also a member of the Grand Bell partnership, and the assessment history in his case was similar. He also appealed from the reassessments disallowing his claims for non-capital losses, but in January 2003 the Court heard a motion to determine by way of a preliminary issue under Rule 58 of the Tax Court of Canada Rules (General Procedure) whether the Minister was entitled under subparagraph 152(4)(b)(i) to make the reassessment disallowing the carry-back, notwithstanding that the normal reassessment period had by then expired. The taxpayer's position prevailed in this Court.[3] After the conclusion of the trial in these appeals, while judgment was reserved, counsel brought a motion to reopen the hearing of the appeals to permit the same issue to be raised in the present case. By that time the decision of this Court in Agazarian was under appeal, and a date had been set for the hearing. At the request of both counsel, I agreed to defer the motion, and not to give judgment, pending final resolution of the limitation issue in Agazarian. Since then the Federal Court of Appeal has allowed the Crown's appeal in Agazarian, and on December 16, 2004 the Supreme Court of Canada dismissed the Appellant's application for leave to appeal. The Appellant then withdrew its motion to reopen the hearing of this appeal.

[3]      In the meantime, counsel for the Appellant brought two separate motions seeking to reopen the trial to adduce additional evidence. I allowed both motions,[4] and as a result Exhibits A-4 to A-30 were added to the trial record. They are all documents that came into the Appellant's possession after the end of the trial, and that could not have been obtained earlier. In fact, most f them came into existence after the end of the trial.

[4]      In June 1988 Geddes Contracting Co. Ltd. and 344820 British Columbia Ltd. amalgamated to form the Appellant. Gordon Geddes is the principal shareholder, and his is the directing mind of the Appellant. The company has had a long and successful history in construction of roads, power lines, dams and similar large projects. Mr. Geddes has also been involved in some real estate development projects over the years, and has made some small investments in oil and gas properties.

[5]      Bellamah Community Development (Bellamah) was a partnership created under the laws of the State of New Mexico; Kenland Development Inc. (Kenland) was an Arizona corporation. On May 30, 1986, they formed a limited partnership under the laws of New Mexico called Grand Bell Property Ltd. (Grand Bell). Each of them held a 1% general interest and a 49% limited interest in Grand Bell. Immediately after its creation, Grand Bell purchased 575 acres of raw land near the city of Phoenix, Arizona. The purchase was financed by a first mortgage on the land for $23,613,000, some additional borrowings, and some capital raised by the two partners. Development in the Phoenix area did not proceed as rapidly after 1986 as the Grand Bell partners had apparently expected. By that time the 575-acre parcel of land had decreased to approximately U$24 million.

[6]      In the spring of 1988, a Mr. Lynch was instrumental in introducing Mr. John Gregory of the firm Thorsteinssons, Tax Lawyers, to the principals of Grand Bell. Mr. Gregory represented the Appellant and some other clients to whom it could be advantageous to realize non-capital losses in 1988 for income tax reasons. As a result the following series of carefully planned and executed transactions occurred.

i)                    On May 6, 1988, a limited partnership was formed under New Mexico law. Bellamah and Kenland were its only partners, each of them holding a 1% general interest and a 49% limited interest. It was named Grand Bell II.

ii)                  Grand Bellchanged its fiscal year end from December 31 to May 7.

iii)                Each of the partners of Grand Bell changed its interest from 1% general interest and 49% limited interest to 49.5% general interest and 0.5% limited interest.

iv)                The partners of Grand Bell jointly executed two promissory notes payable to Grand Bell, one for U$12,000,000 and one for U$5,500,000.

v)                  Grand Bellassigned the $12,000,000 note to Grand Bell II, and in consideration Grand Bell II assumed a liability of Grand Bell to its bank of U$12,000,000.

vi)                Each of the two Grand Bell partners then assigned its 49.5% general interest in Grand Bell to various Canadian purchasers for a total consideration of U$202,125. The Appellant was one of these purchasers, and it acquired a 10.7582% interest.

vii)              Each of the two original Grand Bell partners then assigned its remaining interest in Grand Bell to 340545 B.C. Ltd. for a total consideration of $8,250. 340545 B.C. Ltd. was a Canadian resident corporation. At this point Grand Bell was entirely owned by Canadian residents.

viii)            Grand Bell's partnership agreement was amended to include among its objectives "(ii) to acquire, own, develop, lease, manage and operate interests in oil and gas property; (iii) to enter into partnerships, limited partnerships, ventures, associations, corporations or other entities whose purpose include any of the foregoing purposes and (iv) to engage in such other activities as may be deemed necessary or appropriate by the partners". It continued to have as one of its stated objectives "... acquire, develop, construct improvements on, lease, manage, operate for profit, hold for appreciation, and sell or exchange real property, ... " (Exhibit A-1, Tab 40).

ix)                Grand Bellthen purchased an interest in three oil and gas leases in Alberta from G.J.S. Resources Ltd (GJS) for $15,000. There were producing wells on each of these properties.

x)                  Grand Bellthen sold the 575 acre property to Grand Bell II, and also assigned to it the U$5,500,000 note. In consideration Grand Bell II assumed all the liabilities of Grand Bell other than those pertaining to the oil and gas interest. As part of the same transaction, Grand Bell II granted to Grand Bell what was referred to in the evidence as an option in relation to future development of the 575-acre property. I shall have more to say about the nature of the option clause later in these reasons.

[7]      As a result of the change in its year end to May 7, Grand Bell had a year end the day following the closing of these various transactions, and it computed a non-capital loss for the year of $21,562,808, of which $21.4 million was attributable to the decrease in value of the 575-acre parcel of land. The portion of the loss assigned to the Appellant in respect of its 10.7582% interest was $2,319,770. It applied this in computing its income for the taxation year ended June 29, 1988, leaving a balance of $2,274,720, of which it applied $1,826,178 to its taxation year ended April 30, 1988 and $129,687 to its taxation year ended April 30, 1989. Following the amalgamation to which I referred earlier, the Appellant applied the remaining non-capital loss balance of $318,855 to reduce its taxable income for the taxation year ended April 30, 1989. It is from the disallowance of these loss deductions that the Appellant now appeals.

[8]      Mr. Gordon Geddes has been a very successful entrepreneur for many years. The contracting business was founded by his grandfather in the 1930s. Gordon Geddes became a shareholder, an officer and a director of the company in the mid 1960s. He moved the company from its primary activity of logging into the construction of roads, dams and transmission lines. He also took the company into real estate development, and was involved himself in other real estate transactions through different corporate vehicles.

[9]      It was his investment advisor who brought the Grand Bell deal to Mr. Geddes' attention. Before entering into it he sought the advice of his accountant, and of a tax lawyer, Mr. Warren Mitchell. Mr. Geddes was quite candid in his evidence, saying that he was attracted to the deal by reason of the substantial tax savings that he anticipated from it. He went on to say, however, that he had friends who had made very successful investments in oil and gas, and that he welcomed the opportunity to invest in that field himself, and did so through his company's interest in Grand Bell with every expectation of making significant profits.

[10]     There is no dispute about any of these facts. The Respondent does not contest that the transactions were completed as I have described, or that they were all properly documented. The Crown's opposition to the appeals is based simply upon the contention that Grand Bell, in the hands of the Canadian purchasers, did not carry on business, and so did not meet the classic definition of a partnership under Canadian law.[5] The partners, the Respondent says, were simply the co-owners of a minor investment in three petroleum leases.

[11]     The Appellant's position is that at the relevant time Grand Bell was engaged in the oil and gas business, and in the real estate development business, and therefore qualifies as a partnership whose losses were available to be used by the partners to reduce the incidence of tax on their other incomes. Its oil and gas business was in relation to the leases to which I have referred, and the real estate business was in connection with the future development of the 575-acre parcel, and in particular Grand Bell's future involvement in that through the so-called option clause.

[12]     Mr. Geddes stated quite candidly in his evidence that the prospect of losses that could be applied to minimize the incidence of tax was a motivating factor for him when he decided that the Appellant would participate in the Grand Bell partnership. That is irrelevant, however, to the question whether Grand Bell, once acquired by the Canadian purchasers, was a partnership. The Supreme Court of Canada put it this way in Spire Freezers.

17         As stated in Continental Bank, and reiterated in Backman, a tax motivation will not derogate from the validity of a partnership where the essential ingredients of a partnership are otherwise present: Continental Bank, supra, at paras. 50-52; Backman, supra, at para. 22. Furthermore, as held in Backman, where a Canadian taxpayer seeks to deduct partnership losses through s. 96 of the Act, he or she must satisfy the essential elements of a partnership that exist under Canadian law. In other words, for the purposes of s. 96 of the Act, the essential elements of a partnership must be present, even in respect of foreign partnerships: Backman, supra, at para. 17.

As to the essential elements of a partnership, the Court said this:[6]

14         The essential ingredients of partnerships and the proper approach to determining whether a partnership exists are discussed in Backman. We summarize those principles below.

      (a) The Essential Ingredients of Partnership

15       The three essential ingredients of a valid partnership in Canada were recently described by this Court in Continental Bank, supra, at para. 22. At the time the alleged partnership is formed, the evidence must disclose that the alleged partners were (1) carrying on a business, (2) in common, (3) with a view to profit.

16       In Backman, supra, we discuss the concepts of "carrying on a business", "business", "in common", and "view to profit" as applied to partnership law and as described in Continental Bank. We need not repeat that discussion here. Indeed, most of the reasoning in Backman is applicable in this case.

...

18       As explained in Backman, the determination of the existence of a partnership will depend on the true contract and intention of the parties as appearing from the whole of the facts of the case. Courts must be pragmatic in their approach to the three essential ingredients of partnership and weigh the relevant factors in the context of all the surrounding circumstances: Backman, supra, at paras. 25-26.      

            (c) Application to the Facts at Bar

19       The transactions at issue in this case are similar to those in Backman. As in Backman, in this case, two groups of Canadians allege that they became partners in a valid partnership through a series of transactions that involved their taking assignments of partnership interests in a pre-existing American partnership. The original American partners withdrew, leaving the resultant alleged partnership between the Canadians holding two assets. The primary asset, in this case the HCP condominium project, was held briefly and in effect sold back to the original American partners, generating a large loss for the alleged partnership. The subordinate asset, in this case the Tremont apartment building, is the vehicle through which the appellants seek to establish that there was an ancillary purpose in the transactions that rendered them members of a valid partnership, namely to carry on business in common with a view to profit.

[13]     Superficially at least, the present case is remarkably similar to Backman and Spire Freezers. The preordained plan had as its essential elements the sale of the raw land by the original partnership, now owned by Canadians, to a new partnership formed for the purpose by the Americans, at its now greatly reduced value, leaving the original partnership with a substantial loss and two ancillary assets. One of these was the option to participate in the development of the land, and the other is the interest in petroleum leases that it purchased upon the closing of the various transactions. Counsel for both parties accepted that, having regard to the cases of Backman and Spire Freezers, the result in this case must turn on whether I find that Grand Bell carried on a business after May 6, 1988. Counsel for the Appellant argues that it did carry on business, consisting of the sale of the raw land in Arizona, the development of real estate through the option that it acquired on closing that sale, and the oil and gas interests that it purchased. For the reasons that follow, I am of the view that the evidence simply does not establish that the Canadian Grand Bell partners carried on business at all. They were simply the co-owners of the oil and gas property, and of the rights they acquired under the so-called option.

[14]     I turn first to the suggestion that the sale of the 575-acre parcel of land was in itself evidence of carrying on business. If I understood counsel for the Appellant, his thesis with respect to this is that since the decisions of the Supreme Court in Stewart[7] and Walls[8] it is no longer necessary that a taxpayer be able to show a reasonable expectation of profit in order to establish that he had a business. While that is so, it does not follow that taxpayers who enter into transactions in the expectation, indeed the certainty, of a large loss can thereby be said to have carried on a business. It is quite clear from the Supreme Court's judgment in Stewart that pursuit of profit is an essential element of a business.[9] Whatever may be said of the acquisition of the option, or of the oil and gas property, the sale of the acreage was not motivated by profit, but by loss, albeit an artificial one on paper only so far as the Canadian partners were concerned. I do not accept the Appellant's proposition that the Stewart and Walls decisions somehow detract from the principle stated in Backman and Spire Freezers decided only two years prior. Stewart and Walls were not concerned specifically with defining a business, but rather with what constitutes a source of income, whether business or property, for purposes of section 3 of theAct. The essential attribute of a partnership with which the Supreme Court was concerned in Backman and Spire Freezers, and with which I am concerned here, is very specifically the carrying on of a business. From that perspective, the sale of the Phoenix acreage in this case is not distinguishable from the sale of the apartment complex in Backman. It does not constitute the carrying on of a business by the Canadian partners.

[15]     Nor do I accept the Appellant's contention that by virtue of having purchased the so-called option it was carrying on the business of real estate development. There are two reasons for this conclusion. The first requires an examination of the language of the document itself. The operative provisions of it read as follows:

OPTION AGREEMENT

            This Option Agreement (the "Agreement") is executed by and delivered on the 6th day of May, 1988, by GRAND BELL PROPERTY II, LTD. ("New Partnership") and GRAND BELL PROPERTY, LTD., a New Mexico Limited Partnership ("Grand Bell").

            WHEREAS, contemporaneously herewith, Grand Bell will transfer and convey to New Partnership that certain real property located in Maricopa County, Arizona and described on Exhibit A which is attached hereto and incorporated herein by reference for all purposes (the "Property"); and

            WHEREAS, in connection with the transfer of the Property, New Partnership desires to grant, and Grand Bell desires to retain, an option to share in ten percent (10%) of the Profits, as hereinafter defined, from the Property;

            NOW THEREFORE, for and in consideration of Ten Dollars ($10.00), and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, New Partnership and Grand Bell hereby agree as follows:

            1.          Option. Grand Bellmay elect to share in ten percent (10%) of the Profits arising from and out of the Property if, as a condition precedent, Grand Bell does the following in a timely manner:

                        a.          Notifies New Partnership in writing (the "Notice") ten (10) business days after receipt by Grand Bell of a written demand for a loan to be made pursuant to this Option Agreement that it elects to participate in Profits;

                        b.          Within ten (10) business days of the Notice, placed in escrow (the "Escrow") at a title company in Phoenix, Arizona selected by the New Partnership, the following amounts:

(1)         $100,000.00 representing the initial cost (escrow fees, title fees, attorneys' fees, and other costs and fees of arranging and closing the loan transaction herein contemplated);

(2)         All Carrying Costs, as hereinafter defined, as stated in writing by New Partnership to Grand Bell within ten (10) business days of the Notice; and

(3)         All Development Costs, as hereinafter defined, as stated in writing by New Partnership to Grand Bell within ten (10) business days of the Notice; and

(4)         A letter of credit (from a bank and in a form acceptable to New Partnership) equal to Expected Future Development Costs, as hereinafter defined.

                        c.          Within ten (10) business days of Notice, Grand Bell delivers to New Partnership a binding written commitment to lend the funds in Escrow on the terms described herein as "Parameters".

                                                                                                [Exhibit A-2, Tab 48)

There follow certain parameters as to the loan by Grand Bell to Grand Bell II of the escrowed funds, some definitions, and some other provisions not relevant to this decision. The term of the option is provided for in paragraph 3:

            3.          Term.    The Option herein shall expire without any further action at 5:00 p.m., Phoenix, Arizona time on May 5, 1989. The Option shall also expire if Grand Bell does not elect to participate as provided herein within ten (10) business days after a written request for such participation pursuant to the terms hereof is made by New Partnership accompanied by a written development plan.

Although this agreement is styled an option agreement, and was referred to as such throughout the trial, this seems to me something of a misnomer. It is clear from paragraph 1a that it can only be exercised by Grand Bell 10 business days after it receives a written demand for a loan from Grand Bell II. Even then, Grand Bell's only right under the agreement is to pay to Grand Bell II $100,000, lend to it all the costs enumerated in paragraph 1b at the Citibank prime rate, and to "share in 10% of the profits arising from and out of the property". It makes no provision for Grand Bell or its partners to have any role in the actual development of the property, except as a lender, and that only if the original partners decide to invite them to participate. As a lender they would potentially realize 10% of the net profit of the development, as well as the stipulated rate of interest. However, they would have had no right to participate in the decisions to be made in respect of the project, or the manner in which it would be carried out. It is not surprising that this "option" quietly expired at the end of its one year term without ado. To describe being a party to that agreement during its lifetime as carrying on business would certainly be a gross distortion of the concept.

[16]     On the same day that the purchase of Grand Bell by the Canadian partners closed, Grand Bell purchased from GJS Resources Ltd. a 2.676300% interest in one oil and gas lease and a 6.690800% interest in another. The total price for these was $15,000. A few documents relating to these interests became exhibits at the trial. They show that there was to be a joint operating agreement, but that it apparently was never executed. The major interest in the properties passed from GJS Resources Ltd. through several hands before ending up at the time of the trial with Penn West Petroleum. It appears that the owner of the majority interest in the property from time to time operated it, presumably pursuant to the terms of the unexecuted joint operating agreement. It does not appear that a copy of this document was included among the several inches of documents (many of them quite irrelevant) that were put into evidence by agreement of the parties. Such documents as there are relating to these leases consist largely of notices to Grand Bell of its obligation to remit from time to time its share of the rent to the operator, and of statements of the operating results. Immediately following the closing meeting on May 6, 1988, the Grand Bell partners met and appointed their lawyer, John Gregory, a Thorsteinssons partner, to be the manager of the partnership. He seems to have signed the rent cheque on some occasions, recovering the amounts later from the partnership. At some point, however, Thorsteinssons ceased to act for Grand Bell, and by May 2000, Mr. Geddes had apparently taken over the function of communicating with the majority owner and operator of these leases. A rent cheque for $20.98 in May 2000 is drawn on the bank account of Geddes Construction Ltd. Mr. Geddes apparently stepped into the breach because no one else was looking after it.

[17]     At about the time these appeals were being heard, Penn West decided that it would embark on some drilling operations at these sites, and it wrote to the Appellant's solicitors to advise them of that and to get Grand Bell to sign an authorization for expenditure (AFE) for its part of the proposed program. As I have already said at paragraph 2, I permitted the trial to be reopened twice, and as a result a number of additional documents having to do with the oil and gas leases were admitted in evidence. What they show is that after the trial in March 2003, Penn West carried on what appears to have been some exploratory drilling work on these leases, at a total cost of slightly more than $700,000, of which Grand Bell's share was slightly more than $25,000. On three separate occasions, Mr. Geddes was asked to, and did, sign AFEs to authorize the work. There also continued to be a flow of invoices for the land rent and statements of operations back and forth. Nowhere in any of this additional evidence does it appear that Mr. Geddes, or anyone else on behalf of Grand Bell, was invited to contribute to the planning or decision-making as to the manner of proceeding with the additional drilling. As a small part owner, Grand Bell had to decide on each occasion if it wished to continue to participate as an owner, and upon deciding that it did, it then had to write a cheque for the amount of its additional investment. There is no suggestion that Mr. Geddes consulted Mr. Gregory, or any of the other Grand Bell partners, before signing these AFEs, or even asked the other partners to pay their shares.

[18]     I do not accept that these facts establish that the Canadian Grand Bell partners, when they purchased their interests, had the intention of carrying on business with a view to profit. There was much discussion at the trial as to whether, on the state of the pleadings, the Respondent was entitled to argue that the purchase of the oil and gas interests was "mere window dressing". Whatever expression one might use, I find as a fact that these interests were purchased not for the prospect of the income that they might produce, but because the lawyers who structured the tax avoidance scheme knew very well that under Canadian law you cannot have a partnership without some sort of a business to carry on. Mr. Geddes testified that he had a friend who had made exceedingly profitable investments in oil and gas, while he himself had been much less successful in that field, and that he hoped to see substantial profits from this investment. However, there was no evidence that he or any of the partners had any particular basis for buying these interests rather than any other, or that they sought any advice from people with real knowledge of the petroleum business. In Backman, the Supreme Court had this to say about the issue whether the ownership of the oil and gas property could satisfy the requirement that there be a business.[10]

29       The appellant argues that he established an ancillary intention to carry on business with a view to profit by virtue of the purchase of a working interest in an oil and gas property. Here, again, the documentary evidence indicates an intention to form a partnership. Just prior to the transactions at issue in this appeal, the partnership agreement was amended to provide for investment in oil and gas as one of the purposes of the partnership. Shortly before the scheduled withdrawal of the American partners, the alleged partnership did purchase a one percent interest in an Alberta oil and gas property for $5,000. However, as discussed above, this evidence of intention must be weighed against other factors in the context of the surrounding circumstances relating to the oil and gas property. In considering those circumstances, we are not convinced that the putative partners had the necessary intention to carry on business in common with a view to profit. It is difficult to accept that there was in fact a business being carried on when none of the factors relevant to the existence of a business supports that contention. The putative partners did not hold themselves out to others as providers of goods or services derived from their interest in the oil and gas property. They had no management duties in respect of the property. There is no evidence that the alleged partnership or its agents expended anything other than nominal time, attention or labour on the project; nor did they incur any liabilities to other persons in respect of it.

The same is essentially true of this case. There is no reason to believe that anyone other than Penn West knew that Grand Bell even owned its oil and gas interests. It never interacted with people in the industry. The only liabilities that it incurred were to the majority owner and operator for its small share of the rent. It did make an additional investment of some $25,000 after March 1993, but that was certainly not in contemplation of Mr. Geddes, or any other partner, in May 1986 when the arrangements were put in place. Against all this, there is only the subjective evidence of Mr. Geddes that he hoped that this time his oil and gas investment would be profitable. That does not turn a passive investment into a business. Mr. Geddes quite clearly knew very little about any of the affairs of the partnership. Other than the few cheques that he had signed for rent, because no one else was doing it, he could not tell us anything significant about the oil and gas properties. One might reasonably think that Mr. Gregory, who had been made manager of Grand Bell in May 1986, would have had some knowledge of the business, if business it was. He did not testify. Nor did any other Grand Bell partner. The inference that I draw is that they could not have said anything that would have been useful to the Appellant.

[19]     My conclusion is that nothing in the facts distinguishes this case from that of Backman. The Grand Bell partners in Canada did not carry on business with a view to profit, even as an ancillary purpose. The appeals are dismissed, with costs.

Signed at Ottawa, Canada, this 6th day of January, 2005.

"E.A. Bowie"

Bowie J.

CITATION:

2005TCC6

COURT FILE NO.:

95-978(IT)G

STYLE OF CAUSE:

Geddes Contracting Co. Ltd. and Her Majesty the Queen

PLACE OF HEARING:

Vancouver, British Columbia

DATES OF HEARING:

March 3, 4 and 5, 2003

REASONS FOR JUDGMENT BY:

The Honourable Justice E.A. Bowie

DATE OF JUDGMENT:

January 6, 2005.

APPEARANCES:

Counsel for the Appellant:

John W. Bilawich and Robert D. Holmes

Counsel for the Respondent:

Robert Carvalho

COUNSEL OF RECORD:

For the Appellant:

Name:

John W. Bilawich

Firm:

Holmes & King

For the Respondent:

John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Canada

---