Date:
20090508
Docket: A-188-08
Citation: 2009 FCA 139
CORAM: LÉTOURNEAU
J.A.
PELLETIER
J.A.
TRUDEL
J.A.
BETWEEN:
AMIANTE SPEC INC.
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
TRUDEL J.A.
Introduction
[1]
The
appellant is appealing a decision of Justice Favreau (the judge) of the Tax
Court of Canada, 2008 TCC 89, dated March 27, 2008. The judge
dismissed the appellant’s appeal against a notice of assessment issued by the
Minister of Revenue of Québec on behalf of the Minister of National Revenue
(collectively the Minister) pursuant to the Excise Tax Act, R.S.C. 1985,
c. E-15 (the Act). The notice covers
the period from November 1, 1998, to February 28, 2002, (period in issue)
and increased the appellant’s tax liability for that period by $139,791.69 in
net tax, in addition to a penalty of $56,056.69 and interest in the amount of
$14,021.61 (sections 280 and 285 of the Act).
[2]
The
issues before this Court are clearly identified. The three
grounds that form the basis for this appeal can be summarized as follows:
(a)
the
judge erred in imposing on the appellant a heavier burden of proof than her
initial burden to “demolish”, on a balance of probabilities, the exact
assumptions made by the Minister to make the assessment. (Hickman Motors
Ltd. v. Canada, [1997] 2 S.C.R. 336 at paragraph 92 [Hickman],
Appellant’s Memorandum, paragraphs 14-40).
(b)
the
judge erred in drawing a negative inference from the absence of one Réal
Pomerleau from the witness box and therefore concluding that his testimony
“would have been unfavourable to the Appellant’s case”. (reasons for judgment,
paragraph 89) (reasons).
(c)
the
judge made palpable and overriding errors in his assessment of the evidence,
more specifically the evidence surrounding the appellant’s submission of false
documents to tax authorities during the audit conducted prior to the issuance
of the assessment, and the evidence of the cashing of the cheques submitted to
pay the challenged invoices in discount cheque-cashing centres.
[3]
These
questions being now clearly defined, it is not necessary to describe all of the
facts adduced in evidence before the Tax Court of Canada, which the judge laid
out in great detail in his reasons at paragraphs 1 to 71.
[4]
For
the purposes of this appeal, it is sufficient to know that the appellant,
Amiante Spec Inc., is a business operating in the field of asbestos fibre
removal and building insulation installation. It is duly
registered in the Goods and Services Tax/Harmonized Sales Tax (GST/HST) Program
with the Canada Revenue Agency.
[5]
In
the course of carrying on its business, the appellant regularly uses the
services of subcontractors for, inter alia, the following services and
supplies:
(a)
rental
and setup of platforms enabling the appellant’s employees to perform work;
(b)
cleaning
work of sites; and
(c)
professional
accounting services.
[6]
The
appellant claims to have paid $1,832,592.25 to 10 subcontractors for the
services allegedly supplied during the period in issue, as follows:
|
Para. 10 of reasons
|
Subcontractors
|
Consideration
|
GST
|
|
|
|
|
|
|
(a)
|
Construction Des Forges Inc.
|
150,859.75
|
10,560.18
|
|
(b)
|
9085-6329 Québec Inc. (Systèmes intérieurs modernes)
|
99,500.00
|
6,965.00
|
|
(c)
|
Échafaudage Unic Inc.
|
20,737.50
|
1,451.63
|
|
(d)
|
3587991 Canada Inc. (Gestion St-Martin-Concorde)
|
301,775.00
|
21,124.25
|
|
(e)
|
9092-0638 Québec Inc. (Grands travaux J.J.B.)
|
97,570.00
|
6,829.90
|
|
(f)
|
9088-5518 Québec Inc. (Chomedey Métal-IK)
|
165,715.00
|
11,600.00
|
|
(g)
|
9104-0667 Québec Inc. (Construction Carnaval)
|
569,000.00
|
39,830.00
|
|
(h)
|
Poliquin et associés
|
361,435.00
|
25,300.45
|
|
(i)
|
Leonardo Canzeri
|
51,000.00
|
3,570.00
|
|
(j)
|
9085-5925 Québec Inc.
|
15,000.00
|
1,050.00
|
|
|
|
|
|
|
|
Total
|
1,832,592.25
|
128,281.41
|
[7]
The
Goods and Services Tax (GST) corresponding to that consideration amounts to
$128,281.41. When it prepared its statutory declarations and determined
its net tax, the appellant claimed, inter alia, that amount as an input
tax credit (ITC). Its claim was disallowed for
reasons that are clear from the conclusions and assumptions of fact that formed
the basis for the Minister’s assessment (Appeal Record, vol. I,
page 38, paragraph 27).
[8]
The
appellant is not appealing the judge’s conclusions upholding the Minister’s
refusal to allow the ITCs for the subcontractors appearing at rows (h) and (i)
of the above table.
Although the amount of the disputed ITCs is reduced
from $128,281.41 to $99,410.96 in this partial appeal, (Appellant’s Memorandum,
pages 1 and 14), the nature of the dispute between the parties remains
unchanged.
[9]
To
return to the Minister’s conclusions and assumptions, I note that the following
are the most relevant to the issues. Together, they form the
respondent’s main argument:
[translation]
the
appellant did not acquire any of the supplies of goods or services in question
that it alleges having acquired from the ten (10) subcontractors, or it
acquired those supplies but from a completely different supplier from those
stated on the supporting documents provided for the period in issue;
the
supporting documents for the disallowed ITCs in the amount of $128,281.41
respecting the supplies of goods or services that it purportedly acquired
during the period in issue are false and constitute invoices of convenience
used to enable the appellant to claim ITCs to which it was not entitled in
determining its net tax for the period in issue;
the
appellant’s records contain, furthermore, false documents from the Commission
de la santé et de la sécurité du travail (hereafter “CSST”) [certificate of
compliance] and from the Commission de la construction du Québec (hereafter
“CCQ”) [situation letter], which were not submitted to the Minister until after
the draft assessment was filed. (Appeal Record, vol.
I, pages 40-41, subparagraphs m, j and n).
Standard of Review
[10]
It
can be readily seen that the issues relate primarily to the judge’s handling of
the evidence with regard to these assumptions. The matter of
whether or not the assumptions were rebutted was thus a question of mixed fact
and law that was for the judge to decide.
[11]
It
is trite law that “[t]he Trial Judge is better situated to make factual
findings owing to his or her extensive exposure to the evidence, the advantage
of hearing testimony viva voce, and the judge’s familiarity with the
case as a whole. Because the primary role of the Trial Judge is to weigh and
assess voluminous quantities of evidence, the expertise and insight of the Trial
Judge in this area should be respected.” (Housen v. Nikolaisen, 2002 SCC
33, [2002] 2 S.C.R. 235, page 251).
[12]
Thus,
our Court will adopt a deferential attitude unless it is established that the Trial
Judge made some palpable and overriding error which affected his assessment of
the facts (Geffen v. Goodman Estate, [1991] 2 S.C.R. 353,
pages 388-389).
[13]
Bearing
in mind this standard of review, I intend to begin by analyzing the appellant’s
first and third grounds for appeal.
First and third grounds:
burden of proof and assessment of the evidence
[14]
The
appellant argues that the judge :
[translation]
.
. . distorted the test set out in Hickman in imposing on it the burden
of proving on the balance of probabilities, rather than prima facie, the
services provided by the subcontractors (Appellant’s Memorandum, page 20).
[15]
Hickman reminded us that the Minister proceeds on assumptions in order to
make assessments and that the taxpayer has the initial burden of demolishing
the exact assumptions stated by the Minister. This initial
onus is met where the taxpayer makes out at least a prima facie case
that demolishes the accuracy of the assumptions made in the assessment. Lastly,
when the taxpayer has met his or her onus, the onus shifts to the Minister to
rebut the prima facie case made out by the taxpayer and prove the
assumptions (Hickman, supra, at paragraphs 92, 93 and 94).
[16]
The
appellant argues that it has fulfilled its obligations and demolished the
assumption that it did not acquire any of the supplies of goods or services
that it alleges to have acquired by filing in the record of the Court the
contracts entered into with subcontractors, including the associated invoices
and settlement cheques (Appellant’s Memorandum, page 22).
[17]
What
is more, it submits that the eight witnesses that it called before the Court,
whose testimonies were not contradicted,
[translation]
.
. . showed that the subcontractors had been on site with the equipment required
for the services that were to be rendered to the appellant and that they had
made the supplies appearing on the invoices that gave rise to the assessment
(Appellant’s Memorandum, paragraph 24).
[18]
In
support of its argument, the appellant refers more specifically to the
testimonies of its president, Mr. Spiridigliozzi, and those of Gilles Goupil,
Maurice Duguay, Louis-Pierre Lafortune, Joyca Pellerin, Raïd Kassawat, Tullio
Ricci and Nicolaï Tcheboratev, all of whom were called to the stand in a bid to
prove the supply of services for which the appellant had made an ITC claim.
[19]
The
judge briefly summarized the testimonies of most of those witnesses, deeming it
“very telling” that the appellant did not call to the witness stand any of the
subcontractors whose invoices are challenged by the Minister (except for Mr.
Poliquin, whose services are no longer disputed in this appeal).
[20]
The
appellant’s reply is that it [translation]
“could not call as witnesses people who had defrauded the tax authorities and
did not remit the tax amounts collected” (Appellant’s Memorandum,
paragraph 81), adding at the hearing that it is not up to the appellant to
bear the economic burden of its subcontractors’ deception. (Joseph Ribkoff
Inc. v. The Queen, 2003 TCC 397, paragraph 100; Appellant’s
Memorandum, paragraph 61). In the case at
bar, that is not what the Minister did. Rather,
the Minister submits that the appellant did not acquire the services
corresponding to the ITCs it claimed. That is
what the appellant had to prove on a prima facie basis.
[21]
In
this case, however, the judge concluded that “[b]ased on the testimonial and
documentary evidence, the appellant has not shown that the transactions
referred to in the invoices were genuine services in view of the record as a
whole” and that the shifting of the burden of proof was therefore not justified
(reasons, paragraph 79).
The judge agreed with the Minister’s contention that
the invoices from the subcontractors were invoices of convenience, that is :
[translation]
... a scheme in which one company issues invoices to another in
exchange for a selling price per invoice. The
accommodator that issues the invoice is not engaged in any commercial activity
and sells the invoice to the purchaser, which, generally, will pay its workers
under the table, appropriate the funds as an officer or pay a subcontractor a
third of the amount in cash (Appeal Record, vol. XV, testimony of Robert
Bergeron, pages 3177-3178, lines 24-25, 1-6).
[22]
Since
the appellant criticizes the judge for having imposed too heavy a burden on it,
it is appropriate to review what constitutes a prima facie case.
[23]
A
prima facie case is one “supported by evidence which raises such a
degree of probability in its favour that it must be accepted if believed by the
Court unless it is rebutted or the contrary is proved. It may be contrasted
with conclusive evidence which excludes the possibility of the truth of any
other conclusion than the one established by that evidence” (Stewart v.
Canada, [2000] T.C.J. No. 53, paragraph 23).
[24]
Although
it is not conclusive evidence, “the burden of proof put on the taxpayer is not
to be lightly, capriciously or casually shifted”, considering that “[i]t is the
taxpayer’s business” (Orly Automobiles Inc. v. Canada,
2005 FCA 425, paragraph 20). This Court
stated that the taxpayer “knows how and why it is run in a particular fashion
rather than in some other ways. He [or she] knows and possesses information
that the Minister does not. He [or she] has information within his [or her]
reach and under his [or her] control” (ibid.).
[25]
It
is self-evident that the Minister’s assumptions had to be rebutted prima
facie for each of the subcontractors since the Minister’s grounds for
refusal could vary from one to the next.
[26]
Accordingly,
the appellant’s evidence regarding the services billed on the invoices relevant
to this appeal had to demonstrate, prima facie, that the appellant had
rented the platforms and that they had been assembled and disassembled by the
subcontractors that were parties to the contracts giving rise to the
appellant’s claim.
[27]
Therefore,
in the cases of subcontractors Poliquin (h), Canzeri (i) and Chomedey Métal-IK
(f), the Minister had relied on subsection 169(4) of the Act and section 3 of
the Input Tax Credit Information (GST/HST) Regulations, SOR/91-45, to
declare that the supporting documentation was inadequate, since either the name
of the recipient or the supplier was not shown, the GST registration number was
incorrect or had been cancelled, or the supplier no longer existed (reasons,
paragraph 87, Appeal Record, vol. XVI, Argument of Mr. Denis,
pages 3476-3477; Canzeri: Appeal Record, vol. I, page 232;
Poliquin: Appeal Record, vol. I, pages 204, 208, 212, 217, 219, 221,
223, 225, 227 and 229; Chomedey Métal-IK: Appeal Record, vol. I,
page 167).
[28]
Since
the appellant is no longer appealing from the judgment respecting the first two
suppliers and did not advance any particular argument against the judge’s
conclusion regarding Chomedey Métal‑IK, there is no basis for commenting
on the judge’s reasons concerning these suppliers except to recall that the
evidence on them was before him when he made his findings “in view of the
record as a whole” (reasons, paragraph 79).
[29]
What
is the case for the other subcontractors? In his
reasons, the judge briefly summarizes what he concluded from the evidence on
each of them. I do not intend to reassess the
copious evidence adduced during the eight-day trial. I will limit my discussion to the appellant’s criticisms in
its memorandum and, in particular, to the witness statements that it cited in
support of its arguments.
[30]
Before
that, however, some general comments are in order. Firstly, the
services that the appellant could allege to have received were for platforms,
not scaffolding. This distinction is important
for the purposes of the assessment and was brought to the attention of the
judge by the engineer, Mr. Kassawat (Appeal Record, vol. XII,
page 2637, lines 20-25; page 2643, lines 18-25; see also
Argument of Mr. Denis: Appeal Record, vol. XVI, page 3548,
lines 19-22). Essentially, scaffolding is
temporary and on wheels with breaks, while platforms are not. A Quebec construction decree stipulates that the latter must be assembled
by specialized subcontractors (Appeal Record, vol. XII, testimony of
Gilles Goupil, page 2552, lines 16-20).
[31]
Secondly,
the Minister is not challenging that the appellant may sometimes need platforms
for the performance of its work and that, at such times, it calls in
specialized subcontractors.
[32]
Thirdly,
several subcontractors, namely Systèmes intérieurs modernes, Échafaudage Unic
Inc., Gestion St-Martin-Concorde, Construction Des Forges Inc. and Construction
Carnaval (reasons, paragraph 89), were, at one time or another, represented by
Réal Pomerleau. He did not testify, leading the judge to draw from that fact a
negative inference, which forms the subject of the appellant’s second ground
for appeal, to which I will return later.
[33]
Fourthly,
the appellant submits that the testimony of Mr. Spiridigliozzi, the president
of the appellant (its vice-president and secretary during the period in issue),
and the corroborating testimony of the appellant’s superintendant, (its foreman
during the period in issue) Gilles Goupil, [translation]
“who worked on the sites at the crux of this dispute” (Appellant’s Memorandum,
paragraph 28) :
[translation]
.
. . appear to be sufficient to establish prima facie the appellant’s allegations
and reverse the burden of proof . . . (Appellant’s Memorandum,
paragraph 29).
[34]
Yet,
the judge did not believe Mr. Spiridigliozzi’s testimony, finding that his
testimony “about the circumstances surrounding the contracts’ being granted to
the subcontractors was very vague” (reasons, paragraph 89).
[35]
It
is, therefore, not surprising that the judge did not discuss the testimony of
Mr. Goupil (Appeal Record, vol. XII, pages 2535- 2556), who,
moreover, was unable to place any of the suppliers in issue at the job sites
contemplated by the appellant’s contracts, merely stating that the appellant
had used the services of specialized companies when platforms were required.
[36]
Lastly,
all of the subcontractors concerned by this appeal were characterized as [translation] “tax offenders”, each for
reasons more varied than the last, for example: (a) neglecting to file tax
returns; (b) neglecting to file returns for source deductions or making
inadequate returns; (c) neglecting to register for the GST/HST program; and (d)
neglecting to report their contract with the appellant to the CCQ.
[37]
That
said, I will now examine the appellant’s grounds for criticism of the judge’s
conclusions for each of these subcontractors in the order in which they appear
in the above table (see paragraph 6 of these reasons).
Construction Des Forges Inc. (reasons,
paragraphs 45-53)
[38]
This
supplier sent the appellant invoices for work done to install temporary
platforms at three separate job sites (Centre d’éducation des adultes Lemoyne:
Appeal Record, vol. I, page 59; École St-Zotique: Appeal Record,
vol. I, page 64; Hôpital Lindsay: Appeal Record, vol. I,
page 72), each of which the appellant paid by cheque, including one
certified cheque.
[39]
The
judge noted that the supplier had cashed one of these cheques at a discount
cheque-cashing business.
[40]
In
its memorandum, the appellant refers to Mr. Lafontaine’s testimony regarding
the work done at Hôpital Lindsay, asserting that he had attested not only :
[translation]
. . . to the existence of a subcontractor,
Construction Des Forges Inc., but also to the fact that this subcontractor
owned platforms located on the hospital job site. . . . (Appellant’s
Memorandum, paragraph 32).
[41]
This
is a rather inattentive reading of the testimony of Mr. Lafontaine, who, during
the period in issue, was the vice president of Fortier Transport, a company
specializing in crane rental (Appeal Record, vol. XII, page 2525,
lines 9-11).
He was called to explain the invoice and work order
sent to the appellant on August 21, 2000, for the rental of a crane on the
Lindsay site, seemingly for “Construction Des Forges Inc.” for [translation] “taking down equipment”
(Appeal Record, vol. I, pages 79-80). The
client on the work order is A&A Demolition, and he was given the information
it contains over the telephone by someone named Nino, whom he does not know.
To add to this confusion, the witness never went to
the job site (Appeal Record, vol. XII, page 2529).
[42]
In
such circumstances, I fail to see how the appellant can criticize the judge for
not having mentioned this testimony and for not having taken it into account in
his assessment of the prima facie case it had the onus to make.
9085-6329 Québec Inc.
(Systèmes intérieurs modernes) (reasons, paragraphs 42-44)
[43]
In
his reasons, the judge referred to an invoice dated August 28, 2000, that
merely described the services provided as “temporary protection for five
floors”, the fourth phase of the work done at Hôpital Hôtel-Dieu de
Saint-Hyacinthe (Appeal Record, vol. I, page 151).
[44]
In
its memorandum, the appellant did not mention any particular error made by the
judge in his assessment of the evidence on this supplier. As a result, I conclude that the appellant’s dissatisfaction is related
to the negative inference the judge drew from the absence of
Mr. Promerleau, since he was the appellant company’s representative.
Échafaudage Unic Inc. (reasons,
paragraphs 32-35)
[45]
Regarding
this supplier, the judge refers to an invoice dated August 15, 2000, for [translation] “scaffolding for a work
platform for a stairwell” (Appeal Record, vol. I, page 156).
[46]
In its
memorandum, the appellant writes the following on this subject:
[translation]
30.
The appellant called Maurice Duguay, an employee of the Commission de la santé
et sécurité au travail, whose testimony is above suspicion. As the person
responsible for inspecting one of the appellant’s work sites (Parthenais), he
saw three (3) employees of the subcontractor, Échafaudage Unic, setting up
platforms.
At the time of his inspection, he met Réal Pomerleau,
who identified himself as the representative of Échafaudage Unic (Appellant’s
Memorandum, paragraph 30).
[47]
I
reread Mr. Duguay’s testimony closely (Appeal Record, vol. XII,
pages 2650 and following).
It turns out that he visited one of the job sites
of the appellant—Parthenais—on October 23, 2001. It was on his first visit to the site (ibid.,
page 2652, lines 10-11) that three persons identified themselves as
working for Échafaudage Unic Inc., while the appellant’s subcontractor for this
work was Construction Carnaval (reasons, paragraph 82). Therefore, the judge did not err in rejecting
Mr. Duguay’s testimony, not because it lacked credibility, but because it
did not in any way support the appellant’s claim regarding the services
supposedly performed in 2000 by Échafaudage Unic Inc.
3587991 Canada
Inc. (Gestion St-Martin-Concorde) (reasons, paragraphs 58-62)
[48]
The
appellant argues that it has presented the necessary evidence of its
contractual relationship with this supplier by means of the testimonies of the
following persons:
[translation]
(a)
Joyca Pellerin, who saw the platforms set up on the Radio-Canada job site and
representatives of the subcontractor, Gestion St-Martin-Concorde (Appellant’s
Memorandum, paragraph 33; Appeal Record, vol. XII,
pages 2580-2585).
(b)
Tullio Ricci, who saw platforms identified as those of the subcontractor,
Gestion St-Martin-Concorde, at the École Hubert-Maisonneuve job site
(Appellant’s Memorandum, paragraph 35; Appeal Record, vol. XIII,
pages 2757-2762).
and
(c) Nicolaï
Tchebotarev, a project engineer. At the request of
Gestion-St-Martin-Concorde, one of the appellant’s subcontractors, he prepared
plans for the Radio-Canada site. Furthermore,
Mr. Tchebotarev also inspected the platform once it had been installed on that
site (Appellant’s Memorandum, paragraph 36, Appeal Record, vol. XII,
pages 2679-2688).
[49]
A
full answer to this argument made by the appellant may be found at
paragraphs 83 to 85 of the reasons under appeal. In fact, the
judge concluded from these witnesses—who knew, moreover, of the job sites on
which the appellant was doing work—that they had been unable to associate the
suppliers at issue with the claims disallowed by the Minister.
9092-0638 Québec
Inc. (Grands travaux J.J.B.) (reasons, paragraphs 36-41)
[50]
Just
as in the case of Systèmes intérieurs modernes, the appellant did not raise any
particular error regarding this supplier.
[51]
In
the case at hand, the judge noted that the Minister had allowed in part the
appellant’s claim for this subcontractor (working at Hydro-Québec). As
for the disallowed invoice for the work done at I.O.C. in Sept-Îles (Appeal
Record, vol. I, page 162), the judge had the benefit of hearing the
Revenu Québec auditor, Sylvie Davrieux, who had verified the nature of the work
and learned that there had been no platform because :
[translation]
.
. .all demolition [at I.O.C.] had been done using motorized equipment. Additionally, it gave me the list of all the equipment that
passed through the gate for I.O.C. So, for the
I.O.C. project, all equipment going on to the job site was checked at the gate,
and the equipment that entered the site was all motorized equipment. (Appeal
Record, vol. XIII, page 2891, lines 10-16).
Construction Carnaval (reasons,
paragraphs 63-70)
[52]
The
judge concluded from the evidence that four invoices were problematic for this
subcontractor, of which three related to the Armstrong site.
[53]
In
this respect, the appellant submits that one witness, Mr. Kassawat, saw the
representatives of the supplier and platforms at this site (Appellant’s
Memorandum, paragraph 34).
[54]
In
fact, the judge mentions that this witness confirmed by letter that he had seen
this supplier at the job site in connection with two work orders for the
Armstrong company (letter dated June 13, 2002: Appeal Record, vol. I, page 173;
work orders: Appeal Record, vol. IV, pages 867-870). However,
he adds the following at paragraph 83 of his reasons:
.
. . On cross-examination, he was unable to associate the work orders with the
numbers of the Armstrong buildings on which the Appellant did work, or with the
various phases of the work. Furthermore, he was unable to specify exactly which
representatives he met, or specify the dates or places where he met with the
subcontractors. . . .
9085-5925 Québec Inc. (reasons,
paragraphs 30-31)
[55]
The
judge said very little about this supplier, whose only invoice amounted to
$15,000 (Appeal Record, vol. I, page 235). On that
invoice, the work is described as the supply of [translation] “temporary protective materials at three
schools”. The appellant makes no argument
specific to this subcontractor.
[56]
What
is more, I note that in addition to the significant deficiencies in the
appellant’s evidence regarding the services allegedly supplied by the
subcontractors, the judge pointed out other troubling facts:
-
all of the subcontractors, without exception, were tax offenders (reasons,
paragraphs 31, 34, 41, 44, 53, 57, 61, 68, 73, 80 and 86).
-
the subcontractors’ cashing of cheques at discount cheque-cashing centres was
“another serious indication that there was a fraudulent scheme in which
invoices of convenience were used” (reasons, paragraph 86).
-
the appellant received, from five subcontractors, false documents appearing to
have been issued by the CCQ and the CSST to establish the current situation at
certain job sites (reasons, paragraph 74; Appeal Record, vol. XVI,
Argument of Mr. Denis, page 3543, lines 12 and following).
-
the amounts claimed by the subcontractors for platforms represented a high
percentage of the total value of the contracts (Appeal Record, vol. XII,
page 2497; vol. XIII, page 2882, lines 3 and following; (reasons, paragraph 86).
-
the appellant reached an agreement with the CCQ to pay $90,000 in settlement
for violations of the applicable legislation (reasons, paragraphs 71 and
74).
[57]
Therefore,
on the basis of the record, I cannot see any error, palpable or otherwise, in
the conclusions that the judge drew from the evidence. Essentially,
he had to weigh the evidence filed in light of the principles of law set out by
the Supreme Court of Canada in Hickman, and that is what he did. He concluded, and rightly so, that the evidence provided by
the appellant lacked sufficient credibility to make a prima facie case
that would demolish the assumptions raised by the Minister. He made no error in confirming the imposition of the
penalty under section 285 of the Act.
Second ground: negative
inference
[58]
Since
I have reached this conclusion, I do not believe it necessary to deal with the
second ground for appeal, namely the negative inference drawn by the judge and
resulting from Mr. Pomerleau’s absence. Even if the
appellant had been correct in arguing that the judge had erred, which I do not
in any way suggest, such an error would not have altered the outcome of the
appeal. However, I cannot help but note that
the appellant is not complaining about the fact that the judge also drew a
negative inference from the absence “of important witnesses”, namely, the
subcontractors themselves (reasons, paragraph 81), but merely asserts that
it could not run the risk of calling them as witnesses considering the scheme
in which they were participating without its knowledge.
Conclusion
[59]
For these
reasons, I would dismiss this appeal with costs.
“Johanne Trudel”
“I agree.
Gilles Létourneau J.A.”
“I agree.
J.D. Denis Pelletier J.A.”
Certified
true translation
Sarah
Burns
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