Paul Voloudakis and Aleka Voloudakis v. Her Majesty the Queen, [1994] 2 CTC 2103

Bell, J.T.C.C. (orally):—1 have made my decision on this. I would like to make a comment on the evidence. Assuming the accuracy of the appellant's statement, and I have no reason to doubt that having seen the handwriting on a document which handwriting was made by a lady at the Department of National Revenue, I find it reprehensible that her supervisor did not make any effort to find out who she was. That's almost unbelievable. Having said that, because that may have shed some light on this, and assuming that the lady in question told Mr. Voloudakis that he should await receipt of some document outlining the amount that he owed before he filed his application for extension of time his failure to do so in time is explained.

The second thing I would like to say is that with respect to Aleka Voloudakis, because of her unsophistication in these affairs, although she was the owner of four houses, having regard to the appellant Paul Voloudakis’ evidence that he looked after all of her affairs and the assembly of financial statements from the rental premises that he and his wife both owned, I have no difficulty with the proposition that if he succeeds in his application she should likewise succeed in hers in that they are tied inexorably together and in fact these cases were heard on the same evidence before this Court.

With respect to the appellant’s statement that he either misunderstood or was misunderstood, I'm prepared to make the assumption that that is so. That is, when he went to speak to the lady at the tax department, and this would have given him reason not to proceed immediately to file an application even though there would have been nothing wrong logically in proceeding to file an application because one had to be filed sometime, there’s nothing wrong with filing it early. There's certainly something wrong with filing it late.

The next thing I would like to say is that this is a general procedure case. That means it is a case in this Court involving a certain amount of money that's above a minimum amount of money. Whereas the old procedure, because the Court's procedure has changed, allowed a person to appeal from a decision of the Court to the Federal Court-Trial Division and present his evidence all over again as a new trial, that is not the case now with a general procedure appeal. There is no further opportunity to present evidence. It's done forever. What the Federal Court of Appeal would do if it heard this case is make a decision about whether Judge Sarcnuk could or could not reasonably come to the conclusion he came to based on the facts as he heard them and interpreted them.

Having said that, I will refer to these three criteria. Number one, I would be prepared to make the assumption and finding that there was a bona fide intention to appeal whatever the reasons for the delay were. With respect to the second criterion, that the failure to appeal was the result of special circumstances which serve to excuse or justify the failure, if I gave the appellant the benefit of the doubt, and I would be inclined to, he would have met this criterion. With respect to the third criterion, which is that it must be at least arguable that the judgment appealed from is wrong, I accept the sense of the existence of that criterion even though it is not set out in any legislation or rules dealing with this application, and I accept the sense of it as set forth in the various authorities referred to by counsel for the respondent, particularly the Federal Court of Appeal in Le Bel v. The Queen, [1987] 2 C.T.C. 86, 87 D.T.C. 5327.

Having accepted that, I then turn to the judgment of Judge Sarchuk of this Court ([1993] 2 C.T.C. 2735,93 D.T.C. 1068), because the Federal Court of Appeal would deal with the facts as found and the decision on the facts as found by Judge Sarchuk and would not be hearing any new evidence, having regard to the very strong finding that Judge Sarchuk made. I will refer to several instances of that in his judgment. In preface to his conclusion, Judge Sarchuk said at C.T.C. 2737 (D.T.C. 1070):

A word first regarding the credibility of Voloudakis. His testimony was in itself quite improbable and unreasonable. In several instances he contradicted himself and in other matters was contradicted by Miss Osier whose testimony I accept. He was on occasion unresponsive and evasive and generally his demeanour did nothing to suggest truthfulness.

He then says in respect of penalties at page 2739 (D.T.C. 1071):

With respect to Voloudakis I am satisfied that a substantial portion of the expenses he arranged to have claimed as a deduction in both his own and his wife's returns were false. This was not the result of carelessness or negligence. Expenses were deliberately inflated to reduce the amount of tax payable. He kept no records other than Exhibits A-1 and A-3 and these provide absolutely no detail or support for the expenses claimed.

In the circumstances, with those very clear findings of fact based upon Judge Sarchuk's assessment of the credibility of the appellant, I have some difficulty believing that the third test to which reference was made can be met and that is it must be at least arguable that the judgment appealed from is wrong, because, as Mr. Hajecek says, this is a question of fact. There is no law to be applied to that finding of fact and he has made his judgment on the credibility of the appellant.

I don't think it's hard in many situations for it to be at least arguable that the judgment appealed from is wrong, but this case does not deal with the interpretation of law. It is based solely upon a finding of fact and Judge Sarchuk's findings of fact are so clear and his statements are so lucidly expressed that I think it would not be arguable that the judgment appealed from is wrong because the Federal Court of Appeal would look at the finding of fact that was made in this case, and having regard to those reasons, even though I would be prepared to accept the first two of these tests as having been passed by the appellant,! cannot accept the third and accordingly the application for extension of time to file a notice of appeal to the Federal Court of Canada is dismissed.

Application dismissed.