BETWEEN:
and
Hearing held at Montréal, Quebec, on May 4, 2006.
Judgment delivered at Ottawa, Ontario, on May 9, 2006.
REASONS FOR JUDGMENT: DÉCARY J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
PELLETIER J.A.
Date: 20060509
Docket: A-263-04
Citation: 2006 FCA 169
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
PELLETIER J.A.
BETWEEN:
ADRIEN BOULAY
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
[1] The judge of the Tax Court of Canada dismissed the appellant's appeal in the following terms:
So, Mr. Boulay, this morning you had the onus of showing me, on a balance of probabilities, that the Minister erred in adding business income to your income for the 97 and 98 taxation years in the amounts of $21,205 and $6,449, respectively.
Your explanations concerning the amounts at issue and that appear in summary under tab 18 did not convince me.
Your testimony was inconsistent and was not supported by any other reliable testimony or any other satisfactory documentary evidence.
Finally, I feel the Minister was justified in imposing penalties. He fulfilled the onus of proof in accordance with subsection 163(2) of the Act.
FOR THESE REASONS, your appeals are dismissed
[2] The appellant is appealing this judgment essentially on the grounds that there was a breach of procedural fairness.
[3] A brief overview of the facts is in order. For the 1997 and 1998 taxation years, the Minister of National Revenue included in the appellant's reported income certain amounts for unreported business income. The appellant challenged the assessments before the Tax Court of Canada. He is represented by counsel and opted for the General Procedure. The hearing date was scheduled for Tuesday, March 23, 2004. The amount at issue was then approximately $28,000, excluding the penalties of about $2,600.
[4] On Thursday, March 18, 2004, his counsel served on him a motion to cease representing. The motion was granted the following day, March 19, 2004. The order states that [TRANSLATION] "the appellant agrees with the motion". The hearing proceeded as scheduled on March 23, 2004. The appellant represented himself and did not request a postponement.
[5] It appears from the transcripts that from the outset, the appellant was not able to represent himself. He told the judge on several occasions that he did not have in his possession any of the documents on which he was relying, as the documents had not been returned to him by his counsel. None of the seven witnesses had been summoned, yet they had been announced by his counsel in the joint application for hearing. The judge himself described his testimony as "inconsistent". Furthermore, the issue of penalties was not discussed during the hearing and on that point the judge confirmed the Minister's decision in a manner that could not have been more summary (see the last paragraph of the reasons cited above).
[6] Under these circumstances, I am not satisfied that justice could have been served and I am of the opinion that a new hearing is in order.
[7] I would allow appeal, I would set aside the decision by the Tax Court of Canada and I would refer the matter to that Court, differently constituted, for rehearing.
[8] I would award the appellant, who was represented before us, the costs of the appeal.
"Robert Décary"
J.A.
"I concur
J.D. Denis Pelletier J.A."
"Je suis d'accord
Gilles Létourneau J.A. "
Certified true translation
Kelley Harvey, BCL, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-263-04
APPEAL FROM A JUDGMENT BY THE HONOURABLE MR. JUSTICE PAUL BÉDARD OF THE TAX COURT OF CANADA DATED AUGUST 13, 2004, DOCKET NO. 2001-3808(IT)G.
STYLE OF CAUSE: ADRIEN BOULAY v.
HER MAJESTY THE QUEEN
PLACE OF HEARING: Montréal, Quebec
REASONS FOR JUDGMENT: DÉCARY J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
CONCURRING REASONS: PELLETIER J.A.
APPEARANCES:
| FOR THE APPELLANT
|
|
|
Sophie-Lyne Lefebvre |
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Montréal, Quebec |
FOR THE APPELLANT
|