Turner v. Canada, 2005 FCA 340

Date:  20051024

Docket: A-542-03

Citation:  2005 FCA 340

CORAM :      DÉCARY J.A.

LÉTOURNEAU J.A.

NOËL J.A.

BETWEEN:

                                                               LENCY TURNER

                                                                                                                                            Appellant

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                        Respondent

                                    Hearing held at Québec, Quebec, on October 20, 2005.

                              Judgement delivered at Ottawa, Ontario, on October 24, 2005.

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

CONCURRED IN BY:                                                                                                DÉCARY J.A. 

         LÉTOURNEAU J.A.                                                                                                                         

Date:  20051024

Docket:  A-542-03

Citation:  2005 FCA 340

CORAM :      DÉCARY J.A.

LÉTOURNEAU J.A.

NOËL J.A.

BETWEEN:

                                                               LENCY TURNER

                                                                                                                                            Appellant

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                        Respondent

                                                    REASONS FOR JUDGMENT

NOËL J.A.:

[1]               This is an appeal against a decision of Angers J. of the Tax Court of Canada dated October 16, 2003 confirming the assessments issued concerning the appellant’s taxation years 1994 to 1997, adding unreported income totalling $45,935 with penalties for each of the years.

[2]               In issuing the assessments, the Minister of National Revenue assumed that deposits in the order of $33,000, $5,000, $4,000 and $3,000 made by the appellant during the years in question were derived from major fraud perpetrated by her then spouse against Revenue Canada and with respect to which he was charged and convicted.  The Minister also assessed in the hands of the appellant the interest generated on the deposits.

[3]               The amounts in question were deposited by the appellant with a well-known brokerage firm into an account opened in her name.  All the deposits were made in cash, in denominations of $20, $100 and $1,000.  The first deposit was in the amount of $31,000.

[4]               The appellant tried to convince the trial judge that the deposits were not the result of fraud, but came from her mother.  She also explained that the interest income produced by the deposits was not reported because the brokerage firm in which the amounts had been invested had neglected to issue annual statements.

[5]               The trial judge called these explanations implausible.  His analysis showed that the appellant’s mother lived on welfare benefits and was incapable of providing the appellant with the amounts in question.  Furthermore, the judge dismissed the appellant’s testimony to the effect that her mother had received $15,000 to $20,000 during the 1970s as compensation for personal injuries sustained in an automobile accident.  A Provincial Court judgment introduced in evidence by the respondent indicated that, while the appellant’s mother had been awarded damages in 1977, they were in the order of $1,035.15 and represented the cost of repairs to her car.

[6]               When confronted with this evidence, the appellant argued, both before the trial judge and before us, that the $15,000 to $20,000 in damages were derived from a separate event that occurred [TRANSLATION] “in the years 1977 to 1980, or thereabouts” (Appellant’s Memorandum, paragraph 26).  However, no evidence was introduced concerning the event and no details were provided.  In fact, we still know nothing about the circumstances surrounding the bodily injury sustained or the amount of $15,000 to $20,000 paid to her mother.

[7]               While the appellant’s mother would probably have been able to clear up the story, the appellant chose not to call her as a witness.  She explained that, on account of her mother’s health, she didn’t want to expose her to cross-examination.  Here, again, no details were provided.  The trial judge indicated in his judgment that the appellant’s mother’s health “would seem to [be] the reason for her absence” (Reasons, paragraph 29).

[8]               Given that the appellant’s case is based entirely on acts and events that she attributes to her mother, it is surprising, as the trial judge himself noted, that the appellant’s mother was not called to testify.

[9]               The appellant reiterated before this Court her version of the facts, adding that Angers J. should have believed her.  It was up to Angers J. to draw a conclusion as to her credibility, and nothing that the appellant has told us during this hearing gives me reason to question his judgment.

[10]           I would dismiss the appeal with costs.

                    “Marc Noël”                          

J.A.

“I concur.

Robert Décary J.A.”

“I concur.

Gilles Létourneau J.A.”

Certified true translation

Michael Palles

                                                  FEDERAL COURT OF APPEAL

                                                      SOLICITORS OF RECORD

DOCKET:                                                                               A-542-03

STYLE OF CAUSE:                                                              Lency Turner v. Her Majesty the Queen

PLACE OF HEARING:                                                        Québec, Quebec

DATE OF HEARING:                                                          October 20, 2005

REASONS FOR JUDGMENT BY:                                     Noël J.A.

CONCURRED IN BY:                                                         Décary J.A.

Létourneau J.A.

DATED:                                                                                 October 24, 2005

APPEARANCES:

SOLICITORS OF RECORD: