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Torts - Gross Negligence

. Canada v. Paletta

In Canada v. Paletta (Fed CA, 2022) the Federal Court of Appeal considered gross negligence in a federal tax context:
[67] Wynter teaches that although wilful blindness and gross negligence often converge, they are conceptually different. Rennie J.A., writing for this Court, explains this difference as follows (Wynter, paras. 18 and 19):
Gross negligence is distinct from wilful blindness. It arises where the taxpayer’s conduct is found to fall markedly below what would be expected of a reasonable taxpayer. Simply put, if the wilfully blind taxpayer knew better, the grossly negligent taxpayer ought to have known better.

Gross negligence requires a higher degree of neglect than a mere failure to take reasonable care. It is a marked or significant departure from what would be expected. It is more than carelessness or misstatements. The point is captured in the decision of this Court in Zsoldos v. Canada (Attorney General), 2004 FCA 338 at para. 21, 2004 D.T.C. 6672:
In assessing the penalties for gross negligence, the Minister must prove a high degree of negligence, one that is tantamount to intentional acting or an indifference as to whether the law is complied with or not. (See Venne v. R. (1984), 84 D.T.C. 6247 (Fed. T.D.), at 6256.)
. Khanna v. Canada

In Khanna v. Canada (Fed CA, 2022) the Federal Court of Appeal considered the meaning of 'gross negligence':
[7] "“‘Gross negligence’ must be taken to involve greater neglect than simply a failure to use reasonable care. It must involve a high degree of negligence tantamount to intentional acting, an indifference as to whether the law is complied with or not”": Venne v.The Queen, 1984] C.T.C. 223, 84 D.T.C. 6247, at para. 37. The "“conduct must include a high degree of negligence equal to intentional acting or indifference as to compliance”": Melman v. Canada 2017 FCA 83. [2017] 5 C.T.C 1, at para. 4.


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