Date: 19991214
Docket: A-844-97
CORAM: STONE, J.A.
LINDEN, J.A.
ROTHSTEIN, J.A.
BETWEEN:
VERNA GOGOL
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
Heard at Toronto, Ontario, Tuesday, December 14, 1999
Judgment delivered from the Bench at Toronto, Ontario
on Tuesday, December 14, 1999
REASONS FOR JUDGMENT OF THE COURT BY: LINDEN J.A.
Date: 19991214
Docket: A-844-97
CORAM: STONE, J.A.
LINDEN, J.A.
ROTHSTEIN, J.A.
BETWEEN:
VERNA GOGOL
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Tuesday, December 14, 1999)
LINDEN J.A.
This is an application for judicial review from the Tax Court decision dated October 10, 1997 which dismissed an appeal by the applicant of her assessments for the taxation years 1989 to 1991 which were done by net worth method under s. 152(7) of the Income Tax Act, because the applicant failed to file returns herself for those years. Several grounds were raised by counsel but all of them, despite his able efforts, are not persuasive to the Court.
The first basis of complaint is the denial of natural justice on the ground that the Tax Court Judge refused to grant an adjournment when it was sought. That ground is not convincing. The allegation relating to the illness of the applicant was not supported by evidence of her condition nor that it was likely to improve or when. The alleged misrepresentation of the counsel for the Crown that she had witnesses to call - there being only one witness in fact - was not significant and was not relied upon by the Tax Court Judge in exercising her discretion to refuse the adjournment.
The second ground, that of the denial of natural justice because of the incompetence of the applicant"s counsel, has not persuaded us either. While certainly some sloppy work was done, the evidence did not indicate such "extraordinary" incompetence, to use Justice Rothstein"s language in the Huynh case1, as would warrant this Court"s intervention. The Tax Court Judge was not made aware of any "extraordinary" incompetence of counsel during the hearing. The so-called errors made by the lawyer, chosen by the applicant, were mainly technical ones, none of which prevented the applicant from receiving a fair hearing, from testifying on her own on behalf and from calling a witness to give evidence on her behalf.
As for the factual errors complained of, there has been no demonstration of palpable and overriding error that would permit the Court to interfere. The Tax Court Judge was not satisfied by the conflicting and insufficiently documented evidence offered by the applicant"s counsel as to the money she allegedly received from her father and her son"s friends. While the Tax Court Judge said that there was no documentary evidence to support the applicant"s story, she meant that there was no trustworthy documentation, or that the documentary evidence did not support the loan and gift transactions alleged by the applicant, even though a bank record showing certain deposits was introduced. The fact remains that no cheques or notes were introduced to establish the position of the applicant that she received certain loans. In our view, no evidence was ignored by the judge. She concluded that the applicant"s allegation had not been "validly proven". She relied on what she termed the "conservative" estimate of the net worth done by the Minister and we can see no basis to interfere with that conclusion.
The application should be dismissed without costs in the special circumstances of this case.
"A. M. Linden"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: VERNA GOGOL |
Applicant
Respondent
DATE OF HEARING: TUESDAY, DECEMBER 14, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
| OF THE COURT BY: LINDEN J.A. |
Delivered at Toronto, Ontario on Tuesday, December 14, 1999
APPEARANCES: Mr. Guy B.M. Hunter
Ms. Margaret Nott
| SOLICITORS OF RECORD: David Corta & Associates |
Barristers & Solicitors
Toronto, Ontario
| Deputy Attorney General of Canada |
FEDERAL COURT OF APPEAL
Date: 19991214
Docket: A-36-99
BETWEEN:
Applicant
Respondent
__________________
1 Huynh v. MEI (1993), 65 F.T.R. 11 at 15.
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