Wainberg v. Canada (Attorney General), 2005 FCA 19

Date: 20050117

Docket: A-459-03

Citation: 2005 FCA 19

CORAM:        LÉTOURNEAU J.A.

NOËL J.A.

PELLETIER J.A.

BETWEEN:

                                                              BEN WAINBERG

                                                                                                                                            Appellant

                                                                           and

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                        Heard at Montréal, Quebec, on January 11, 2005.

                                Judgment delivered at Ottawa, Ontario, on January 17, 2005.

REASONS FOR JUDGMENT BY:                                                                           PELLETIER J.A.

CONCURRED IN BY:                                                                                        LÉTOURNEAU J.A.

                                                                                                                                          NOËL J.A.

Date: 20050117

Docket: A-459-03

Citation: 2005 FCA 19

CORAM:        LÉTOURNEAU J.A.

NOËL J.A.

PELLETIER J.A.

BETWEEN:

                                                              BEN WAINBERG

                                                                                                                                            Appellant

                                                                           and

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                                    REASONS FOR JUDGMENT

PELLETIER J.A.

[1]                This is an appeal from the decision of Bowie J. of the Tax Court of Canada, reported at [2003] D.T.C. 1395, dismissing Mr. Wainberg's appeal. The Minister reassessed Mr. Wainberg so as to include in his income some $13,000 of interest income from investments standing in his name, income which was declared as interest income by 158961 Canada Inc. (the Corporation), a Corporation controlled by Mr. Wainberg. The Minister also reassessed the Corporation to reduce its income by a similar amount.

[2]                The Reply to Notice of Appeal includes the following assertions:

...

b) the Appellant invested money with HSBC Bank USA, formerly Marine Midland Bank (the "Investments");

c) the Appellant received interest income from the Investments for a total of $15,207 Canadian;

d) the Investments were registered under the Appellant's name;

e) the Appellant did not hold the Investments in trust for the 158961 Canada Inc.;

[3]                In the course of the hearing before the Tax Court, Mr. Wainberg testified that the money whose investment generated the interest income came from the sale of a business back in 1988 which he owned in his personal capacity rather than through a corporation. As a result, the Tax Court pressed Mr. Wainberg to explain how funds which belonged to him personally became the property of the Corporation. No satisfactory answer was given.

[4]                Independently of this line of questioning, Bowie J. noted that the investment accounts which generated the investment income at the relevant time (1998) were all in Mr. Wainberg's name, or in his name in trust for his wife or his son. According to Mr. Wainberg's own evidence, the trust arrangement was to ensure that the funds would be paid to his wife or his son in the event of his death.

[5]                Before us, Mr. Wainberg argued that the trial should have been adjourned to allow him to produce the documentary evidence to show that the money did in fact belong to the Corporation. Mr. Wainberg, who is articulate and well aware of his rights, did not ask the trial judge for an adjournment. The Notice of Hearing which he received advised him that "...all relevant documents in support of the appeal must be available at the hearing of the appeal." There is nothing in the surrounding circumstances which would have imposed a duty on the trial judge to order an adjournment on his own motion.

[6]                Mr. Wainberg sought leave to tender fresh evidence to establish that the Corporation was the owner of the funds received on the sale of the business back in 1988. This Court held that the evidence was not admissible as it did not meet the conditions for the reception of fresh evidence on appeal. See Public School Boards' Assn. of Alberta v. Alberta (Attorney General), [2000] 1 S.C.R. 44 at para. 6.

[7]                In particular, Mr. Wainberg failed to show that the information was potentially decisive. In this last respect, the new evidence did not deal with or in any way explain why the investments in question were in his name and would, according to his own testimony, revert to his wife and son in the event of his death.

[8]                The Tax Court judge carefully reviewed the evidence and came to a conclusion which is supported by the evidence:

I find that the Appellant has failed to discharge the onus on him to show that those accounts, and the interest that they earned, belonged to 158 [the Corporation] and not to him."

[9]                In the result, I would dismiss the appeal with costs.

                                                                                                                            "J.D. Denis Pelletier"              

                                                                                                                        J.A.

"I agree

Gilles Létourneau J.A."

"I agree

Marc Noël J.A."

                                                  FEDERAL COURT OF APPEAL

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                               A-459-03

STYLE OF CAUSE: BEN WAINBERG

v.

ATTORNEY GENERAL OF CANADA         

PLACE OF HEARING:         Montréal, Quebec

DATE OF HEARING:           January 11, 2005

REASONS FOR JUDGMENT BY :                         PELLETIER J.A.

CONCURRED IN BY:                                              LÉTOURNEAU J.A.

NOËL J.A.

DATED:                                  January 17, 2005

APPEARANCES:

Mr Ben Wainberg (himself)                  FOR APPELLANT

Me Annick Provencher

Me Valérie Tardif                                 FOR RESPONDENT

SOLICITORS OF RECORD:

Dept. of Justice                                   

Montréal, Quebec                                FOR RESPONDENT