Citation: 2007TCC452
Date: 20070830
Docket: 2006-2066(IT)G
BETWEEN:
DELANE PATE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
(Delivered
orally from the Bench
at Toronto,
Ontario on July 13, 2007)
Mogan, D.J.
[1] In the year 2000, the Appellant
resided in Burlington, Ontario and was a senior
officer of Laurel Steel Corporation. For the 2000 taxation year, the Appellant
filed an income tax return in Canada reporting significant income in the range of $700,000. The
Appellant received a notice of original assessment for 2000 dated March 29,
2001. By notice of reassessment dated October 21, 2005, the Minister of
National Revenue (the “Minister”) added $498,131 to the Appellant’s reported
income for 2000.
[2] The notice of reassessment
was issued after the end of the normal reassessment period within the meaning
of subsection 152(3.1) of the Income Tax Act, and it is commonly
referred to as statute-barred. Because the reassessment is statute-barred, the
Minister has the onus of proving that the Appellant made a misrepresentation attributable
to neglect, carelessness or wilful default or committed a fraud in filing his
return of income for the 2000 taxation year.
[3] Under the reassessment,
the Appellant’s liability for income tax was increased by $238,403. The Appellant
was assessed a penalty of $119,201 and interest of $137,799. The Appellant has
appealed to this Court from the reassessment. Counsel for the Respondent
accepted the onus of proof and called the Appellant as his first witness. What
follows is a summary of the Appellant’s testimony.
[4] The Appellant retired
around 2004 or 2005 but, prior to that time, had been in the steel business for
35 years. Laurel Steel produced cold finished steel bars, wire mesh and similar
finished steel products. Every second year, in April or May, there was a trade
show in Germany for companies engaged in making steel products like the
products made by Laurel Steel. In 2000, the Appellant had been attending this
trade show for 20 years and, therefore, had been to Germany at least ten times. Through these
trade shows, the Appellant had met Terry Paraskevas, the founder of a
small private German corporation identified as EJP which manufactured equipment
used to make cold steel products.
[5] The Appellant and Terry
Paraskevas had become good friends, and the Appellant had entertained Mr.
Paraskevas at his home in Oakville, Ontario sometime in the early 1990s. In 1999 or 2000, Terry
Paraskevas had asked the Appellant if he could use the Appellant’s name as a
conduit to transfer certain money to a man in China. Mr. Paraskevas said that he
needed the Appellant’s name to open a bank account in Luxembourg to receive and transmit the funds.
The Appellant asked his accountant in Hamilton, Ontario if funds received like this in Europe could be disclosed to
his employer, Laurel Steel, or to the Canada Revenue authorities. Whatever
answer the Appellant received, he must have felt comforted because he gave
Terry Paraskevas permission to use his name and gave him a power of attorney to
open a bank account at Banque Baumann in Luxembourg.
[6] Terry Paraskevas opened
an account at Banque Baumann using the Appellant’s name, “Lane Pate”, as he was
known to family and friends, his first name being abbreviated from DeLane. The Appellant’s
address given to Banque Baumann was 100 Bronte Road, Philipsburg, St. Maarten, Netherlands Antilles. The Appellant
admitted in oral testimony that this was a false address. In 2000, he no longer
resided at 100
Bronte Road, but it is the street address where he had resided in Oakville, Ontario in the early 1990s.
Also the Philipsburg, St. Maarten, Netherlands Antilles part of the
address was used because he had once visited the Netherlands Antilles with his
wife, and they had considered buying a timeshare unit there. In any event,
Banque Baumann did not have an accurate address for the account opened in the
name of Lane Pate. Needless to say, the Appellant did not receive any
correspondence from Banque Baumann.
[7] The Appellant felt
uneasy about the Luxembourg bank account, but he had total confidence in the
integrity of Terry Paraskevas, and so he let the matter go. He described Mr.
Paraskevas as a straight-up guy, one he could trust. The Appellant also knew
Jacques Paraskevas, the son of Terry. Jacques Paraskevas testified at the
hearing, and I will refer below to his evidence. Here, I will simply state that
Jacques Paraskevas described himself and his father as co-managing directors of
EJP Maschinen GmbH, a small family corporation carrying on business in Germany.
[8] In March 2000, Jacques
Paraskevas prepared an invoice from the Appellant to EJP charging a commission
of $254,250 with respect to a sale to Niagara Steel Buffalo, as it was named in
the invoice. That invoice is Exhibit R‑1, Tab 1. Jacques Paraskevas
faxed a copy of the invoice to the Appellant. The invoice, dated March 6, 2000,
ends with the typed word “regards”. The Appellant gave Jacques Paraskevas
permission to write his, the Appellant’s, name under the word “regards” like a
signature.
[9] In April 2000, the Appellant
was in Germany attending the wire
screen trade show. At the request of Jacques Paraskevas, the Appellant and his
wife drove with Mr. Paraskevas to Luxembourg, about a two-hour drive from the trade show, and
went to Banque Baumann. The date was April 26, 2000. Again, at Jacques
Paraskevas’ request, the Appellant withdrew all the money in the account in
cash (deutschmarks) and handed it to Mr. Paraskevas. Exhibit A-1 is a Banque
Baumann document showing a deposit of 214,888 euros from EJP Maschinen
GmbH on March 31, 2000 to the Appellant’s account No. 16. The Appellant
recognized the bank document as being for his account because the word “Noah”
appears on the form. Noah is the name of the Appellant’s grandson, and he had
given that name to Terry Paraskevas to be used as a bank password for
identification to his account.
[10] Exhibit A-2 is also a
Banque Baumann document showing the withdrawal of all cash in the amount of
380,570 on April 26, 2000, but it is not clear to me whether the currency is
euros or deutschmarks. In any event, this is the cash which the Appellant
claims that he handed to Jacques Paraskevas while in Banque Baumann or outside
on the street.
[11] They then drove to
another bank in Luxembourg which the Appellant recalls as a branch of HSBC, a large worldwide bank.
The Appellant stated that Jacques Paraskevas went into the second bank and was
there for many minutes. While waiting for Jacques Paraskevas, the Appellant and
his wife got out of the car and went for a short walk in that particular area
of Luxembourg. It is the Appellant’s
understanding that Mr. Paraskevas was somehow transferring the cash which the Appellant
had handed to him to the account of the unnamed recipient in China. When Jacques
Paraskevas emerged from the second bank, the three persons drove back to the
trade show in Germany.
[12] Continuing with the
summary of the Appellant’s evidence, in November 2000 Jacques Paraskevas
prepared a second invoice from the Appellant to EJP Maschinen GmbH in the
amount of 190,933 deutschmarks. That invoice dated November 28, 2000 is Exhibit
R-1, Tab 2, showing commissions for sales to three corporations identified as
Carpenter, Nucor and Niagara. Jacques Paraskevas faxed a copy of the invoice to the Appellant,
and he again asked permission to write the Appellant’s name like a signature
under the word “regards”. The Appellant gave his permission.
[13] In May 2002, the Appellant
and his wife were again in Germany attending the wire screen trade show. On May 16, 2002,
Jacques Paraskevas asked the Appellant to drive to Luxembourg to go to the bank. The Appellant
and his wife accompanied Mr. Paraskevas to Luxembourg. Exhibit A-3 is a document from VP
Bank showing a deposit on March 28, 2002 of 97,582 euros to the Appellant’s
account. Apparently, VP Bank had purchased and integrated with Banque Baumann
after 2000, and the Appellant’s former account was now with VP Bank.
[14] Exhibit A-4 is a VP Bank
document showing a withdrawal of 185,499.67 euros from the Appellant’s account
on May 16, 2002. The Appellant admits that he withdrew that amount of cash on
May 16, 2002. The Appellant claims, however, that he handed all of the cash to
Mr. Paraskevas as he had done two years earlier. He stated that they walked out
of the bank and Mr. Paraskevas asked him to wait a brief time. The Appellant
observed Jacques Paraskevas walk across the street and speak with a person who
appeared to be a Chinese gentleman. He watched Jacques Paraskevas hand the container
of cash to the Chinese gentleman and then come back across the street to join
the Appellant. They then walked a short distance to Mr. Paraskevas’ car to join
the Appellant’s wife and the three of them drove back to the trade show.
[15] Exhibit R-1, Tab 3, is a
handwritten document called “Confirmation”. It is short and so I will read it
into the record. It is all on one page.
Confirmation: I herewith confirm to have received the following
payments on my personal account at Bank Baumann Luxembourg.
March 6, 2000, 420,285 deutschmarks received March 2000.
November 28, 2000, 190,933.35 deutschmarks received November 2000.
Best regards Lane Pate.
The Appellant admits that this
document is in his handwriting. He states that he wrote it around 2003 or 2004
at the request of Jacques Paraskevas, and he believes that EJP needed the
confirmation to satisfy the German tax authorities that the disbursements to
Banque Bauman were for the business purposes of EJP.
[16] That concludes my
summary of Mr. Pate’s evidence, but I will come back to refer to issues
concerning the credibility of that evidence and its relation to other evidence.
[17] Mr. Sood called as a
second witness Mr. D’Ippolito, the Revenue Canada auditor who got in touch with
Mr. Pate in the summer of 2005, and who ultimately issued the reassessment
which is under appeal. I will defer, however, my summary of Mr. D’Ippolito’s
evidence and deal with it later. Those were the two witnesses called by the
Respondent to discharge the onus on the Minister of proving that the Minister
was entitled to issue the reassessment under appeal.
[18] Counsel for the Appellant
called Jacques Paraskevas as his first witness and a Mr. Liang from Shanghai, China as his second witness.
It is now my purpose to summarize the evidence given by those two witnesses for
the Appellant.
[19] Jacques Paraskevas
corroborated important parts of the Appellant’s testimony. He stated that his
father had asked the Appellant for the use of his name to open an account at
the bank in Luxembourg. He explained his involvement in the transaction by stating that he was
then assisting his father as co-managing director of EJP, and his father had
transferred to him the responsibility of seeing through these transactions with
Mr. Pate and the gentleman from Shanghai (Mr. Liang). With regard to the evidence that I have
summarized from Mr. Pate, Mr. Paraskevas confirmed the substance of it. In
particular, Mr. Paraskevas said that he prepared the two invoices I referred to
as Tab 1 and Tab 2 in Exhibit R-1.
[20] Mr. Pate had been
closely cross-examined on those invoices as to whether they might have been
prepared by him, and not by Mr. Paraskevas, because there are certain, what
appear to be, spelling errors that a person not familiar with the German
language would make and which a person familiar with the German language would
not make. Mr. Paraskevas was consistent in holding to his position that he had
actually prepared those invoices and asked Mr. Pate, the Appellant, for
permission to write his name. He also acknowledged that he had asked the Appellant
to sign the confirmation, which is Exhibit R-1, Tab 3, and admitted that the
confirmation was probably for German tax purposes.
[21] Jacques Paraskevas confirmed
the two trips to the Luxembourg bank: that he had taken the cash on the first
occasion and gone to a second bank for the purpose of transferring it to the
gentleman in Shanghai; and that, on the second occasion, he had actually handed the cash to Mr.
Liang in Luxembourg. What is difficult to
understand in this case is the terms on which the money was paid to the
recipient in China, if it was paid to him, and the consideration given for it.
[22] According to the
evidence of Mr. Paraskevas, and this was later confirmed by the evidence of Mr.
Liang, Mr. Liang was able to provide valuable services to EJP by providing to
EJP (i) the names of prospective customers in the United States; (ii) the kind
of products those customers might need; and (iii) the prices quoted to those
prospective customers by a corporation in Italy (Danieli) which appears to be a
significant competitor of EJP. Therefore, the commissions in question are said
to have been earned by Mr. Liang.
[23] I will now put together
the evidence of both Mr. Paraskevas and Mr. Liang in terms of what their
relationship was, and I briefly set aside the evidence of Mr. Pate as to
his involvement in their transaction.
[24] Mr. Liang said that he
called Terry Paraskevas around 1999 or early 2000 to tell him that because
of the type of work he was doing ‑‑ ‑ at that time
Mr. Liang worked for a company called Noblewell which was a trading
corporation in steel products apparently in Shanghai ‑ ‑ he may be
able to help him to secure additional sales. Terry Paraskevas went to China
sometime in the period 1999 or 2000 and met Mr. Liang in Beijing at a bar. They entered into a business discussion the
substance of which was that Mr. Liang would become an agent residing in China to secure or help to secure sales or other
information that would facilitate and enhance the business of EJP. Mr. Liang
said they agreed that there would be a seven‑and‑one‑half
percent commission payable to him on any business he secured for EJP and that
it had to be paid in cash.
[25] Mr. Liang could not be paid in any way that would
leave a paper trail because if his employer, Noblewell, found out that he was
effecting sales on the side and earning commission, he would lose his job.
Therefore, he was insistent that there be no documentation recording the
arrangement between him and EJP and that any consideration to be paid by EJP
must be in the form of cash.
[26] Apparently, Terry Paraskevas accepted those
terms because, although there was no direct evidence on this point, that would
be the cause of his coming back to Germany and calling the Appellant to ask if
he could use the Appellant’s name to transmit funds to a gentleman in Shanghai.
That part of the story (the agreement between Terry Paraskevas and Mr. Liang) is
consistent with the evidence of both Mr. Liang and Jacques Paraskevas.
Also, that part of the story is believable, but the terms (described by Jacques
Paraskevas and Mr. Liang) on which this money was paid by EJP to Mr. Liang are
not believable.
[27] What these two witnesses (Paraskevas and
Liang) are asking the Court to accept is the fact that a man in Shanghai who speaks limited English could earn commissions on
sales by a German company to North American customers. Mr. Liang testified
mainly through a Mandarin interpreter and, although he does have some English (enough
to speak on the telephone to Germany), his English was so limited that counsel
for the Appellant who called him as a witness frequently asked him to answer in
Mandarin so that the answer would be more comprehensible and more complete. Mr. Liang
followed that advice when so given by counsel for the Appellant.
[28] One of the problems in this case is that,
watching the evidence go in, I concluded that there is a mixture of fact and
fiction. It is not believable to me that Mr. Liang secured sales from EJP to
the three American corporations which were later identified as (i) Niagara‑La
Salle in Buffalo, New York; (ii) Carpenter Technology
Corporation in Redding, Pennsylvania; and (iii) Nucor Cold Finish
in Norfolk, Nebraska. Mr. Liang
stated that he was able to find out what those corporations' needs were in
terms of equipment that EJP might manufacture and sell. He was able to obtain
the specifications for that equipment. He was able to obtain the price being
quoted by at least one significant competitor of EJP so that EJP could not only
make a machine to the required specifications but also match the price of a competitor.
[29] Mr. Liang was closely cross‑examined
by Mr. Sood in this area as to how he could on the telephone transmit
technical information to either Terry Paraskevas or his son, Jacques
Paraskevas, or anyone else in Germany acting on behalf of EJP. Accepting Mr.
Liang’s limited use of the English language, how could any person at EJP
receive information from him in a manner that would permit EJP to quote on
machinery to sell to three corporations in the United States, two of them in
the Eastern United States and one in the Midwest, and permit Mr. Liang to earn
commissions in the amount of $498,000? Throughout 1999, 2000 and 2001,
Mr. Liang resided in China.
[30] Frankly, I disbelieve that part of the
testimony. I do not believe that the money went to Mr. Liang for that
purpose, but that is not the crux of this appeal. The crux of this appeal is
whether the money went to Mr. Liang at all, or did it remain in the hands
of Mr. Pate.
[31] Mr. Pate is in peril in this case
because he admits to falsifying documents to permit the opening of a bank
account in his name in Luxembourg. He admits going to the bank on two
occasions and withdrawing significant amounts of cash which have a Canadian
equivalent value of $498,000. He claims that simultaneously with the withdrawals,
he handed the cash to his friend Jacques Paraskevas so that he (Paraskevas) could
then complete the transfer of the money to a person who, at that time, was
unknown to the Appellant and simply identified as a gentleman in Shanghai.
[32] I will deal briefly with the evidence of
the auditor from Revenue Canada later but, looking at the evidence of the three
persons most intimately involved with the cash: (i) the evidence of Jacques Paraskevas
who was the original source of the funds; (ii) the evidence of the Appellant
who received the funds directly from EJP; and (iii) the evidence of
Mr. Liang who admits that, at the end of the day, he received the funds, I
find that the Appellant's evidence on balance has a true ring. Here are my
reasons for that finding.
[33] In the year 2000, he had been in the steel business
for about 30 years. He knew everybody in this related steel business in North
America. There were names put to him by Mr. Sood who were employed by
either Niagara‑La Salle or Nucor or Carpenter Technologies. Mr. Pate
admitted that he knew those people. They were in the same industry. He had once
worked for Nucor at a senior position, a managerial position. As in many
businesses, the people who manufacture in a particular community all know each
other. They are competitors in one way but they also cooperate in technological
matters in another way.
[34] I find it difficult to believe that a man
who was earning salary and bonus income in the range of $700,000 in the year
2000, and had what appears to be an unblemished record in the steel industry,
would put his reputation at risk in the twilight of his career by starting to
do agency deals for a German manufacturer to earn commissions by facilitating
the sale of the German equipment to people in the same industry in North
America.
[35] If he made contact with those companies,
like Niagara‑La Salle, Carpenter Technologies and Nucor, his former
employer, they would know, if not directly, they would surmise that he had a
hand in facilitating a sale of German products to them; and they would suspect
that he was getting a secret commission or an under‑the‑table
payment. His whole reputation would be at risk. There is, of course, human
greed; and some people who have a lot of money want more, but I observed
closely the demeanour of Mr. Pate in the witness box. He was under intense
cross‑examination by Mr. Sood, but he did not waver.
[36] He acknowledged the deceitful documents he
had either signed or been party to but, at the end of the day, he stuck to his
story that, on those two occasions, he went to Luxembourg; he withdrew the cash;
he handed it to Jacques Paraskevas; and he never saw it again. As I have already
stated, the Appellant's evidence has a true ring to it.
[37] The evidence of Jacques Paraskevas also
has a true ring, in part, in the sense that I believe he went to the bank in
Luxembourg with the Appellant; he received the cash; and he passed it on to
Mr. Liang. I do not accept the other part of his testimony which purports
to explain the reason for giving the money to Mr. Liang. I am satisfied
that Mr. Liang ended up with the money but not for the reasons given by Jacques Paraskevas.
[38] As for Mr. Liang's testimony, I accept
the parallel provisions of the evidence of Jacques Paraskevas. I believe
that Mr. Liang got the money. I do not believe that he received it for the
reason he said. As I have already indicated, it is not believable to me that a
man in the position of Mr. Liang who lives in Shanghai could earn commissions on sales to three American steel businesses
when he never travelled to the USA.
[39] For whatever reason, perhaps with the
expanding market in China, I am convinced that EJP had good reason to get the
money in question into the hands of Mr. Liang as compensation for a
valuable service rendered to EJP by Mr. Liang, but the only evidence which
gives this appeal a colour of deceit is the purported reasons given for paying
that money. I think it was for some other consideration.
[40] I do not have to get into that area,
however, because the reasons for EJP paying cash to Mr. Liang are not
relevant in deciding this case. The only relevant fact is whether the cash
ended up in the hands of the Appellant or somebody else. On balance, I am
satisfied that the Appellant was only a conduit. Considering all of the
evidence, I conclude that the Appellant did not retain the money in question.
[41] There were certain overtones to the oral
evidence that are corroborative unintentionally, of the Appellant's story. I will
refer to two of them specifically. First, Mr. Sood called
Mr. D'Ippolito (a Revenue Canada assessor) as his second witness, and he
explained how he was given the Appellant's file. Apparently, the German tax
authorities sent a communication to the Canadian tax authorities saying: “You
might want to question Mr. Lane Pate about large amounts of money he
appears to have received from a German company by way of deposit in a
Luxembourg bank”. That is the kind of information that frequently is passed
between two countries because, under most tax treaties, there is an obligation
to share that kind of information.
[42] Mr. D'Ippolito stated that he received
the file in the late spring of 2005; he started to track down the Appellant;
and ended up calling him at his home in Palm Desert, California. The evidence of Mr. D'Ippolito and the Appellant is
consistent on this phone call in July 2005. Mr. D'Ippolito said that when
he finally got Mr. Pate on the phone, he was cautious about asking him
certain questions about possible transactions in Europe;
and Mr. Pate was cautious about answering. Mr. D’Ippolito finally had
to be more specific and said: “Well, I am calling you about an account you had
in Luxembourg”, or words to that effect. As soon as that specific fact came out,
Mr. D'Ippolito quoted the Appellant as saying: "I know who set me
up".
[43] That is a kind of throw‑away line, but
it is also an impulsive reaction like: “Oh‑oh, I did a favour and now I'm
on the hook”. I look on the Appellant’s impulsive response as corroborative of
his favour to Terry Paraskevas, and not as an admission of guilt like “Now I’m
caught”.
[44] At the end of their phone conversation, the
Appellant said to Mr. D'Ippolito: “If you want information, send me a
letter”. Exhibit R‑1, Tab 4, is the letter from Mr. D'Ippolito to
the Appellant on July 11, 2005 (the same day as the phone conversation) asking
for information. That letter was referred to in the evidence of
Mr. D'Ippolito in which he specifically mentions $611,218 deutschmarks
deposited into a foreign financial institution, such as Banque Baumann in Luxembourg, and he asks: “What about it?”. Exhibit R‑1, Tab
5, is the Appellant’s reply to Mr. D’Ippolito’s letter.
[45] The Appellant’s
reply is partly true. Whether
it is all true or not, I do not have to decide but he stated that, as a favour
to EJP Maschinen GmbH, Germany, he received from EJP into an account at Banque
Baumann in Luxembourg certain money. The letter then proceeded:
I then forwarded
these amounts to Mr. Liang (see attached confirmation).
At the time
Mr. Liang had a conflict of interest to receive these funds directly from
EJP. Shortly after this event that was no longer the case.
[46] There are certain statements in the
Appellant’s reply (ExhibitR-1, Tab 5) which are clearly not true. He says he
received the money in 2000 but, on his own evidence and the evidence of
Mr. Paraskevas, he did not. He received the two amounts two years apart.
He also explains that the foreign mailing address was used as initially another
bank account in Antilles was foreseen. That is really not true. I
have already explained how he came to use that address. But from there on, his
explanation is consistent with his sworn and believable testimony that he did
not retain the money.
[47] The other overtone of corroboration in oral
testimony which struck a truthful cord with me was in the cross‑examination
of Jacques Paraskevas. He was having to admit that he and his father had
to set up this non‑documented, totally‑oral arrangement with
Mr. Liang which provided for the payment of significant amounts of money
to Liang in circumstances which are not in the normal course of business. When
he was being pressed by Mr. Sood as to why he would set up such an
arrangement and why he would come to Canada and testify at his own expense, he
stated at one point: “I came here to right a wrong”. He said he received no
compensation for testifying, and he came to Canada
for this trial at his own expense.
[48] For me, this impulsive reaction by Jacques Paraskevas
under cross‑examination is consistent with the Appellant's agreement to
let Terry Paraskevas use his name. A successful businessman like the Appellant
would not let a stranger use his name to open a bank account in Luxembourg unless there was total trust in the person given the
power of attorney to open the bank account. You have to really trust a third
party to do such a thing. I conclude that that trust existed between the
Appellant and Terry Paraskevas, and I think that trust was transferred to the
younger Jacques Paraskevas.
[49] I conclude that when Messrs. Paraskevas
(father and son) realized that by asking the Appellant to do them this favour (they
have a significant interest in advancing their relationship with Mr. Liang
in China), they later saw the trouble that their friend got into in Canada
where the assessments of additional tax and penalty and interest are almost
equal to the amount that has been added to his income, I have no doubt that they
felt a sense of duty or honour to come to Canada and do what they could to
explain in this Court the circumstances; and to confirm that the Appellant did
not get the money. I believe the most relevant parts of the oral testimony of
Jacques Paraskevas.
[50] On that basis, I will allow the appeal
totally with costs to the Appellant.
[51] I would add this in closing. This is an
appeal that had to come to trial. In other words, I think Revenue Canada cannot
be criticized for the reassessment. All of the documentation available to
Revenue Canada puts the money in the hands of the Appellant. Indeed, on his own
evidence, he had the cash right in his hands standing in a bank in Luxembourg.
[52] As Mr. Sood argued, all the documents
lead to that conclusion; and it is only if one hears and accepts the oral
testimony that the door may be open for the Appellant to walk out from under
the assessment. Because the reassessment is statute‑barred, the onus of
proving that the reassessment may be made under subsection 152(4) of the Act
is on the Minister.
[53] Listening to the oral testimony of all four witnesses,
I have come to the conclusion that, on a balance of probabilities,
Mr. Pate did not retain this money for his own account and benefit. Although
I have serious misgivings, as I have indicated, about certain evidence given
collateral to the primary issue as to whether the Appellant retained the money,
those misgivings do not affect my finding that the oral testimony of the
Appellant and Jacques Paraskevas is believable and believed on the primary
issue.
[54] For those reasons, the appeals will be
allowed. I will issue my judgment probably in two or three weeks when I have
had an opportunity to review and edit and amplify, if necessary, the reasons
given this morning.
Signed at Ottawa, Canada this 30th day of August, 2007.
“M.A. Mogan”
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