Date:
20090316
Docket: A-183-08
A-184-08
Citation:
2009 FCA 86
CORAM: EVANS
J.A.
RYER
J.A.
TRUDEL
J.A.
BETWEEN:
Docket:
A-183-08
ALLAN R. GOLDEN
Appellant
and
HER MAJESTY THE QUEEN
Respondent
BETWEEN:
Docket:
A-184-08
SHARAN GOLDEN
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Winnipeg,
Manitoba,
on March 16, 2009.
Judgment delivered from the Bench at Winnipeg, Manitoba, on March
16, 2009.
REASONS
FOR JUDGMENT OF THE COURT BY: EVANS
J.A.
Date: 20090316
Docket: A-183-08
A-184-08
Citation:
2009 FCA 86
CORAM: EVANS
J.A.
RYER
J.A.
TRUDEL
J.A.
BETWEEN: Docket:
A-183-08
ALLAN R. GOLDEN
Appellant
and
HER MAJESTY THE QUEEN
Respondent
BETWEEN:
Docket: A-184-08
SHARAN GOLDEN
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Winnipeg, Manitoba, on March 16,
2009)
EVANS J.A.
[1]
Allan and
Sharan Golden, who are married to each other, have appealed to the Tax Court of
Canada against reassessments of their income tax liability for the taxation
years 1989, 1990, and 1991. The Crown brought motions to prevent the appellants
from re-litigating part of their liability for the 1989 taxation year, on the
ground of issue estoppel and abuse of process, as a result of Mr Golden’s
conviction of tax evasion with respect to his 1989 income. The criminal charges
and reassessments were based on a net worth audit of the Goldens by the Canada
Revenue Agency (“CRA”).
[2]
In careful
and comprehensive reasons covering both appeals, Justice Boyle of the Tax Court
of Canada (“the Tax Court Judge”) allowed the motions: Golden v. Her Majesty
the Queen, 2008 TCC 173. He held that issue estoppel prevented Mr
Golden from denying both that his unreported income for 1989 was less than
$34,000 and that he was liable to penalties on this amount. He also held that
Ms Golden was prevented by abuse of process from denying that her unreported
income for 1989 was less than $217,816.90.
[3]
The
Goldens have appealed this decision. Because these appeals are related and
raise similar, but not identical issues, we, like the Tax Court Judge, will
issue one set of reasons dealing with both appeals. A copy of these reasons
will be placed in each appellant’s file.
[4]
Counsel
for the appellants argued that the Tax Court Judge exercised his discretion
erroneously when he concluded that the Crown’s failure to disclose material,
seized by the CRA from Mr Golden in the course of its investigation, did not
render it unfair to apply issue estoppel and abuse of process in the tax
appeals. Counsel said that fairness requires that the appellants’ 1989 net
income for the purpose of their tax appeals should be decided on all the
available evidence, including the material seized from Mr Golden.
[5]
The Tax
Court Judge found that in the criminal proceedings the Manitoba courts had refused to order further
disclosure of material by the Crown, including material seized by the CRA which
Mr Golden now has in his possession and says should be considered in the tax
appeals. However, this argument, in effect, impugns the basis on which, for the
purpose of determining the fine, the judge in the criminal trial calculated the
amount of income on which Mr Gold had evaded tax. It amounts to an allegation that
the criminal trial judge should have taken into consideration the information
contained in the seized documents.
[6]
We are not
persuaded that the Tax Court Judge erred in applying issue estoppel and abuse
of process when he found that the material on which Mr Golden seeks to rely does
not constitute “fresh, new evidence” which “conclusively impeaches the original
results”: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003]
3 S.C.R. 77, at para. 52. Further, the appellants did not put before the Tax
Court Judge the materials which they allege constitute “fresh, new evidence”
and justify re-litigation of the amounts of unreported income.
[7]
Hence, the
Tax Court Judge made no error in the exercise of his discretion that warrants
the intervention of this Court. For these reasons, the appeals will be
dismissed with costs of $1,750.00 payable to the Crown by each appellant.
"John
M. Evans"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-183-08
(APPEAL FROM AN ORDER OF THE TAX COURT
OF CANADA DATED MARCH 26, 2008, DOCKET NO. 2004-27(IT)G (2008 TCC 173)
STYLE OF CAUSE: Allan
R. Golden and Her Majesty
the
Queen
PLACE OF HEARING: Winnipeg,
Manitoba
DATE OF HEARING: March 16, 2009
REASONS FOR JUDGMENT OF THE COURT BY: (Evans, Ryer and Trudel JJ.A.)
DELIVERED FROM THE BENCH BY: Evans J.A.
APPEARANCES:
|
Barbara M. Shields
|
FOR THE APPELLANT
|
|
Cecil S. Woon
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Aikins, MacAuley & Thorvaldson LLP
Winnipeg, Manitoba
|
FOR THE
APPELLANT
|
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE
RESPONDENT
|
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-184-08
(APPEAL FROM AN ORDER OF THE TAX COURT
OF CANADA DATED MARCH 26, 2008, DOCKET NO. 2004-26(IT)G (2008TCC173)
STYLE OF CAUSE: Sharan
Golden and Her Majesty the
Queen
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: March
16, 2009
REASONS FOR JUDGMENT OF THE COURT BY: (Evans,
Ryer and Trudel JJ.A.)
DELIVERED FROM THE BENCH BY: Evans
J.A.
APPEARANCES:
|
Barbara M. Shields
|
FOR THE APPELLANT
|
|
Cecil S. Woon
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Aikins, MacAuley & Thorvaldson LLP
Winnipeg, Manitoba
|
FOR THE
APPELLANT
|
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE
RESPONDENT
|
Email this Content