Rose v. Canada, 2003 FCA 12

Date: 20030113

Docket: A-123-02

Neutral citation: 2003 FCA 12

CORAM:        STRAYER J.A.

SEXTON J.A.

SHARLOW J.A.

BETWEEN:

                                                              HENRY PETER ROSE

                                                                                                                                                       Applicant

                                                                                 and

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                   Respondent

                                   Heard at Vancouver, British Columbia on January 13, 2003.

           Judgment delivered from the Bench at Vancouver, British Columbia on January 13, 2003.

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

Date: 20030113

Docket: A-123-02

Neutral citation: 2003 FCA 12

CORAM:        STRAYER J.A.

SEXTON J.A.

SHARLOW J.A.

BETWEEN:

                                                              HENRY PETER ROSE

                                                                                                                                                       Applicant

                                                                                 and

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                   Respondent

                                       REASONS FOR JUDGMENT OF THE COURT

                               (Delivered from the Bench at Vancouver, British Columbia

                                                                on January 13, 2003.)

SHARLOW J.A.

[1]                 The applicant Henry Peter Rose seeks judicial review of a decision of the Tax Court in an informal proceeding, dismissing his appeal from an assessment for 1996. The decision is reported as Rose v. Canada, [2002] 3 CTC 2136, 2002 DTC 3860(n).

[2]                 Mr. Rose did not file a return for 1996, but his employer B.C. Roasters Ltd. prepared and filed a T4 slip purporting to state his earnings for that year. The assessment under appeal was based on that T4 slip.

[3]                 In the proceedings in the Tax Court, Mr. Rose asserted that the T4 slip upon which the Minister relied had overstated his earnings by approximately $16,000. He suggested that the difference might represent a reimbursement of expenses that he had paid on behalf of his employer. However, he presented no evidence in support of his assertion except his belief. He did not present pay stubs or bank statements, or any analysis or reconciliation, that might have assisted his case. He argued that the statutory deductions indicated on the T4 slip were consistent with gross earnings that were considerably lower than the earnings shown on the T4 slip, but the Tax Court Judge accepted the argument of counsel for the Crown that such a discrepancy does not necessarily indicate that the amount shown as gross income is incorrect. The Tax Court Judge dismissed his appeal for lack of evidence that was capable of establishing that the assessment was incorrect.

[4]                 In this Court, Mr. Rose seeks to adduce an affidavit, to which are appended copies of bank statements, that he says supports his position that his 1996 income was $16,000 less than indicated on the T4 slip. Counsel for the Crown objects to the presentation of this new evidence because new evidence is not admissible in an application for judicial review. We do not need to determine that legal issue in this case. Having heard from Mr. Rose why the evidence is being raised now for the first time, we must conclude that in all probability Mr. Rose could, with due diligence, have provided it to the Tax Court Judge. Nor are the bank statements, considered with Mr. Rose's affidavit, capable of establishing that the assessment under appeal is incorrect.

[5]                 In our view, the decision of the Tax Court Judge is sound, based on the evidence before him. We are not persuaded that there is any basis in law for interfering with it. This application for judicial review will be dismissed.

(Sgd.) "Karen R. Sharlow"

J.A.

                                                    FEDERAL COURT OF APPEAL

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

    

DOCKET:                                             A-123-02

STYLE OF CAUSE:                           Henry Peter Rose v. HMTQ

                                                                                   

  

PLACE OF HEARING:                     Vancouver, B.C.

  

DATE OF HEARING:                       January 13, 2003

  

REASONS FOR Judgment:            Sharlow JA

  

CONCURRED IN BY:                     

DATED:                                                January 13, 2003

   

APPEARANCES:

Henry Peter Rose                                                                           FOR THE APPLICANT

Carl Januszczak/Michael Taylor                                                    FOR THE RESPONDENT

  

SOLICITORS OF RECORD:

Henry Peter Rose (On his own behalf) FOR THE APPLICANT

  

Morris Rosenberg

Department of Justice                                                                     FOR THE RESPONDENT