This case turned largely on its facts. It offers some good guidance on the importance of impartiality for experts. The Crown’s expert relied heavily on CRA guidelines so that the court rejected his evidence as impartial. The expert had also made a material error in his assumptions of fact.
The court adopted these criteria for deciding when there has been creditable scientific research or experimental development:
“[141] The case law has developed a certain number of useful considerations for determining if there was or not an activity that constitutes scientific research or experimental development. These criteria enumerated by a Judge Bowman, as he then was, were approved by the Federal Court of Appeal. These considerations are summarized in the CW Agencies Inc. v. Canada case where the Court of Appeal says this:
“[17] Both sides in front of us relied on the test outlined in Northwest Hydraulic Consultants Limited v. Her Majesty the Queen, [1998] D.T.C. 1839. In that case, Judge Bowman of the Tax Court outlined five criteria which are useful in determining whether a particular activity constitutes SRED. Those criteria have been approved by this Court in RIS-Christie v. Her Majesty the Queen, [1999] D.T.C. 5087 at page 5089. The criteria are as follows:
“1. Was there a technological risk or uncertainty which could not be removed by routine engineering or standard procedures?
“2. Did the person claiming to be doing SRED formulate hypotheses specifically aimed at reducing or eliminating that technological uncertainty?
“3. Did the procedure adopted accord with the total discipline of the scientific method including the formulation testing and modification of hypotheses?
“4. Did the process result in a technological advancement?
“5. Was a detailed record of the hypotheses tested, and results kept as the work progressed?”
See Abeilles service de conditionnement inc. c. La Reine, 2014 CCI (Jorre)