Owen J, in Morrison v R, 2018 TCC 220, writes the following about the burden of proof relating to the Minister’s assumptions:
[115] The Federal Court of Appeal makes two important points in these decisions [Transocean Offshore Ltd. v R, 2005 FCA 104, and R v Anchor Pointe Energy Ltd., 2007 FCA 188]. First, the issue of whether assumptions of fact should be taken as true is one of fairness to the taxpayer. Second, assumptions regarding facts that are exclusively or peculiarly within the knowledge of the Minister may not be treated as true. The “”may”” in the second point simply recognizes that in determining whether or not to treat the assumptions of fact as true, the Court must consider whether an affirmative decision would be unfair to the taxpayer in the circumstances. If there is no unfairness to the taxpayer the assumption may stand as true even if exclusively or peculiarly within the knowledge of the Minister. The outcome in any given situation will depend on all the relevant circumstances.
[116] The word “”exclusively”” is clear in its meaning: the Minister is the only person that has the information. I assume the word “”peculiarly”” is similarly being used in the sense of belonging to or pertaining to the Minister, or in the sense of being unique to the Minister.
[117] I have considerable difficulty understanding how facts obtained by the Minister through the audit of the Appellants and the Programs in which they participated are exclusive or peculiar to the Minister. Save for the audit, the facts are outside the purview of the Minister’s knowledge and are clearly known by others involved in the Programs even if not known by the Appellants.
[118] The Appellants consciously chose to participate in the Programs with little or no knowledge of what went on behind the curtain, so to speak. In such circumstances, it is not unfair to the Appellants to allow the Minister to assume what went on behind the curtain.
