Charron v. Canada, 2010 FCA 120

Date: 20100512

Docket: A‑267‑09

Citation: 2010 FCA 120

CORAM:       NADON J.A.

                        PELLETIER J.A.

                        TRUDEL J.A.

BETWEEN:

GILLES CHARRON

Appellant

and

HER MAJESTY THE QUEEN

Respondent

Heard at Ottawa, Ontario, on May 12, 2010.

Judgment delivered from the Bench at Ottawa, Ontario, on May 12, 2010.

REASONS FOR JUDGMENT OF THE COURT BY:                                                  TRUDEL J.A.

Date: 20100512

Docket: A‑267‑09

Citation: 2010 FCA 120

CORAM:       NADON J.A.

                        PELLETIER J.A.

                        TRUDEL J.A.

BETWEEN:

GILLES CHARRON

Appellant

and

HER MAJESTY THE QUEEN

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Ottawa, Ontario, on May 12, 2010)

TRUDEL J.A.

[1]               This is an appeal by Mr. Charron of a judgment of the Tax Court of Canada (2009 TCC 290, Justice Tardif, dated May 28, 2009).

[2]               A tax audit showed that for the purposes of calculating his income for the 2002 taxation year, the appellant overvalued the losses resulting from his numerous securities transactions for the 2002 taxation year by an amount of $402,225.

[3]               Consequently, the Minister of Revenue issued a reassessment and imposed on the appellant the penalty set out at subsection 163(2) of the Income Tax Act, R.S.C. 1985, c. 1 (5^th Supp.) (the Act). This penalty applies to “[e]very person who, knowingly, or under circumstances amounting to gross negligence, has made . . . a false statement or omission in a return . . . made in respect of a taxation year”. The judge maintained that penalty, which is the decision now being appealed before us.

[4]               We are all of the opinion that the judge made no error. Before finding that the penalty was justified, he took the relevant factors into account by weighing them against all of the evidence. In other words, he noted the importance of the omission related to the declared income, the appellant’s acknowledgement of his negligence in preparing his tax return and his level of education as an experienced, professional investment advisor.

[5]               In the end, the judge stated having no doubt that the respondent had discharged her burden of proof to show that the penalty was justified. He also found that “[t]he evidence shows, on a balance of probabilities, that the appellant deliberately and knowingly decided to report losses that were greatly overstated” (Reasons for Judgment, at paragraph 52).

[6]               Based on the evidence in the record, it was open to the judge to conclude as he did. Consequently, this Court’s intervention is not warranted, and the appeal will be dismissed with costs.

“Johanne Trudel”

Certified true translation

Sarah Burns

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                              A‑267‑09

STYLE OF CAUSE:                                                              Gilles Charron v.

                                                                                                Her Majesty the Queen

PLACE OF HEARING:                                                        Ottawa, Ontario

DATE OF HEARING:                                                          May 12, 2010

REASONS FOR JUDGMENT OF THE COURT BY:       NADON J.A.

                                                                                                PELLETIER J.A.

                                                                                                TRUDEL J.A.

DELIVERED FROM THE BENCH BY:                            TRUDEL J.A.

APPEARANCES:

SOLICITORS OF RECORD: