Mark G Smerchanski v. Minister of National Revenue, [1972] CTC 117, 72 DTC 6117

Collier, J:—This appeal, and another appeal in which Eco Exploration Company Limited (hereafter “Eco”) is the appellant, were heard in part commencing January 17, 1972. It was agreed the evidence in this particular appeal (Smerchanski) would be evidence, where applicable, in the Eco appeal. The evidence at the hearing was lengthy and at times complicated, and after the respondent had completed his prima facie case an agreement was reached among the parties and the Court: the taxpayers would adduce evidence on two issues, then after argument a preliminary judgment would be given by me on the two issues, with rights to appeal, and further evidence and argument on the remaining issues would be postponed, pending the outcome of any appeals. The reason for the agreement was that it had become apparent that the evidence and argument on what I have referred to as the remaining issues were going to consume a great deal of time (very much longer than the 23 days these appeals to date have taken) and if the ultimate outcome of the judgment on one of the two issues was adverse to the taxpayer, then the remaining issues could not be gone into.

These appeals, in form at least, are from reassessments by the Minister dated July 8, 1964 against the appellant (hereafter “the taxpayer”) for the years 1945 to 1959 inclusive and against Eco for the years 1946, 1947 and 1951 to 1957 inclusive, in respect to income tax for those years. The additional tax, interest, and penalties assessed against the taxpayer was $951,610.81, against Eco $117,177.89. The Minister computed these amounts as follows:

The taxpayer:

Evasion [sic]	$354,041.00
Assessment adjustment	174,905.85
Interest	272,663.96
Penalty (Sec. 56(1))	150,000.00
Eco:
Evasion [sic]	70,056.27
Interest	32,031.40
Penalty (Sec. 56(1))	15,090.22

The first issue for decision is whether the taxpayer and Eco are barred from appealing these reassessments.

The respondent relies on two documents signed by the taxpayer and Eco, both dated July 10, 1964. I set them out in full:

I, Mark Gerald Smerchanski, of the City of Winnipeg, in Manitoba, Mining Engineer, do hereby acknowledge receipt of Notices of Re-assessment made under the Income War Tax Act, being Chapter 97, Revised Statutes of Canada, 1927, The Income Tax Act, being Chapter 52, Statutes of Canada, 1948 and the Income Tax Act, being Chapter 148, Revised Statutes of Canada, 1952, in regard to my income tax for the taxation years 1945 to 1959, both inclusive, in the following amounts:

1945	$124,453.47
1946	173,413.76
1947	47,303.19
1948	2,292.65
1949	4,562.24
1950	3,751.45
1951	6,046.75
1952	16,125.99
1953	10,304.69
1954	12,567.53
1955	94,231.07
1956	288,994.87
1957	96,739.51
1958	54,858.82
1959	15,964.82
	$951,610.81

I do hereby approve of and consent to the individual amounts involved in each re-assessment, which I understand are inclusive of taxes, interest and penalties for each of the said years. I do hereby admit my liability for the amount of the same and I do hereby waive any right of appeal I now or may have in regard to any of the said re-assessments.

I do hereby further acknowledge that the said re-assessments for the years 1955 to 1958, both inclusive, are in substitution for the provisional reassessments made for those years under dates March 14, 1960, May 1, 1961, April 16, 1962, and June 28, 1963, and I do hereby withdraw the Notices of Objection dated June 10, 1960, June 8, 1961, June 5, 1962 and September 23, 1963, I previously filed in regard to the said provisional reassessments.

It is understood and agreed that this document is binding upon my heirs, executors and administrators.

IN WITNESS WHEREOF I! have hereunto set my hand and seal at Winnipeg, in Manitoba, this 10th day of July, 1964.

“Harry Walsh”	“M G Smerchanski”
Witness	Mark Gerald Smerchanski	(Seal)

Chapter 52, Statutes of Canada, 1948 and the Income Tax Act, being Chapter 148, Revised Statutes of Canada, 1952, in regard to its income tax for the years 1946, 1947 and 1951 to 1957, both inclusive, in the following amounts:

1946	$ 14,546.26
1947	1,038.46
1951	7,116.31
1952	244.18
1953	26,717.40
1954	3,124.85
1955	19,652.48
1956	24,274.45
1957	20,463.50
	$117,177.89

Eco Exploration Company Limited does hereby approve of and consent to the individual amounts involved in each re-assessment, which it understands are inclusive of taxes, interest and penalties for each of the said years. Eco Exploration Company Limited does hereby admit its liability for the amount of the same and it does hereby waive any right of appeal it now or may have in regard to any of the said re-assessments.

It is understood and agreed that this document is binding upon the successors and assigns of Eco Exploration Company Limited.

IN WITNESS WHEREOF ECO EXPLORATION COMPANY LIMITED has hereunto affixed its Corporate Seal duly attested by the hands of its proper officers in that behalf this 10th day of July, 1964.

ECO EXPLORATION COMPANY LIMITED

(No personal liability)

Per:

“P N Smerchanski”

President

“Phillip Smerchanski”

Secretary.

These documents followed from an earlier document dated July 2, 1964 which I shall refer to later.

On July 10, 1964 a certified cheque for $868,788.70 and an authorization to apply $200,000 paid earlier in the year by the taxpayer to the Receiver General of Canada, were given to a legal agent of the Department of Justice.

The respondent also contends that the taxpayer and Eco are estopped by their conduct from asserting a right to appeal or pursuing the present appeals.

The taxpayer, in his pleadings, alleges the July 10, 1964 documents are against public policy and public morality and “void of legal effect by reason of illegality of consideration and by reason of undue influence and duress”. Coercion, in respect to the documents, is pleaded as well.

In argument, the main contention advanced by counsel for the taxpayer was that the Minister had no power or authority under the Income Tax Act to stipulate (as was allegedly done) for the waiver of the right to appeal the reassessments. The plea: that the agreements were obtained by undue influence or duress was not abandoned, but was not strongly pressed.

I have concluded that the documents dated July 10, 1964 are valid agreements, are binding on the taxpayer and Eco, and are not against public policy and morality as contended.

In my view, the conclusion I have come to is basically a decision on facts, and it is necessary therefore to review the evidence in some detail.

The taxpayer is a mining geologist who graduated in 1937. In the early years. his activities were mainly in the mining field, but it is apparent he later became a “businessman” as well, and a successful one. He has been an MLA for the Province of Manitoba, and is presently a Member of Parliament. Eco, at all material times, was under his control.

In the fall of 1959 a field audit of the taxpayers was commenced by a Department of National Revenue assessor, E T Elliott. I accept Elliott’s evidence that he asked from the outset for all books and records. There is no doubt on the evidence Elliott was not given all the material records, and I refer particularly to detailed records kept by the taxpayer’s wife at their home. These records have been called throughout “Pat’s Statements” and “Pat’s Bank Write-Ups”. (See Exhibit A 170 and Exhibits A 67-71.) What records he was given, Elliott had to press for.

He was given a net worth statement (Exhibit 339) which covered the period from January 1, 1948 to December 31, 1958, prepared by the taxpayer’s auditor. It was inaccurate and misleading and did not disclose substantial assets. The taxpayer’s wife prepared a statement of a substantial part of the undisclosed assets (amounting to approximately $93,000) but the accountant did not include these in the net worth statement. Unfortunately the auditor is dead, as are several persons who could have given, I have no doubt, important evidence in respect to many of the matters gone into at this hearing. In any event, the taxpayer admitted he was given a copy of Exhibit 339 at approximately the same time it was given to the assessor. He said nothing then or later to see the omissions were brought to the attention of the Department.

From the records made available, Elliott, in the course of his investigation, came to the opinion there were fairly large sums which might be subject to tax. He also came to the opinion that, in some instances, sums properly income had not been declared by the taxpayer. The file was then referred to the Special Investigation Section. An authorization, approved by the Exchequer Court, to enter and search the taxpayer’s business premises and his home and to seize any documents and records relative to suspected violations of the Income Tax Act was obtained, and the search and seizure was carried out on February 21, 1961. A vast amount of material was seized.

The staff in the Winnipeg office of the Department then commenced a detailed and thorough investigation. It lasted a long time and was substantially completed by June of 1964. The time taken is understandable. To illustrate, particulars to the respondent’s pleadings in the taxpayer’s case alone are 170 pages in length, the book of refer- ences to the evidence supporting the particulars (which does not include copies of actual exhibits) is 262 pages in length; there were approximately 380 exhibits filed at this hearing, most of which were bound volumes varying in size from small to large (these exhibits of course did not include all the material examined by the Departmental staff: only that felt to be relevant). I have mentioned the above because the taxpayer complained during the trial of the length of time his records had been kept by the Department.

During the course of the investigation, the Departmental staff made photostatic copies of many, but not all, of the seized documents and records. This fact is important and I shall refer to it later.

In May of 1963 an interim investigation report was written by F Reynolds (now deceased), then supervisor of the Special Investigations section in Winnipeg. At that time the years which had been investigated were from 1949 to 1959 inclusive. Although the investigation was not complete Reynolds felt there was approximately $633,000 of undeclared income involved. It was apparently his view that this amount involved misrepresentation or fraud and he recommended in a report to the Deputy Minister of National Revenue, dated June 3, 1963, the taxpayer should be prosecuted by way of indictment.* [1]

The file of the Special Investigations Section, including the reports mentioned, was referred to J L Gourlay, then the senior legal adviser to the Department of National Revenue, and the person in charge of legal enforcement. He felt there was sufficient evidence to justify the appointment of legal counsel to review the whole matter with a view to prosecution, and so advised the Deputy Minister, J G McEntyre.

Around this time, or shortly after, the taxpayer had been endeavouring to obtain an interview with the Minister of National Revenue. A meeting with the Deputy Minister was arranged and took place on August 28, 1963 in Ottawa. Present were the Deputy Minister, Mr Gourlay, a Mr E C Hauch of the Department, the taxpayer, and Mr Archie Micay, an experienced Manitoba lawyer who had acted for the taxpayer for some time. There is really no dispute as to what went on at the meeting. The taxpayer was present throughout most of the meeting, but Mr Micay made full notes and showed them and gave a copy to the taxpayer afterwards. I! have gone to those notes (Exhibit 332, Tab 1) to summarize this meeting.

The Deputy Minister produced a sheet made up of items under nine heads of alleged suppressed income totalling $633,538.37. Micay was allowed to take notes of the headings and amounts. I point out here that item number 6, mortgage and loan interest of $23,278.53, is recorded in Mr. Micay’s notes along with the other items, including item 9, an alleged taxable profit from New Manitoba Mines Limited, promotions and underwritings, of $251,465.80. Other material, including some evidence, was produced by the Deputy Minister.

The Deputy Minister was not prepared to give details of the facts and materials the Department had. He felt the matter should be turned over to the Department of Justice so that the Courts could resolve the matter. Mr McEntyre further said that Mr Gourlay was going to Winnipeg to review the evidence first-hand and would report to him. Then a decision would be made as to whether prosecution would be recommended.

it is clear from all the evidence given in respect to this meeting there were no threats made, by or on behalf of the respondent, nor any promises, implied or otherwise, that any tax liability could possibly be settled without prosecution. It is equally clear the Deputy Minister and his advisers felt there was a case for prosecution and so advised Mr Micay. Mr Micay was told a further meeting could be arranged with the Deputy Minister.

The date of this first meeting with the Deputy Minister (August 28, 1963) is important because the Department subsequently proceeded on the basis that any charges against the taxpayer would have to be laid by August 28, 1964.* [2] It was admitted that opinions varied in the Department as to the interpretation of. . . “the day on which evidence, sufficient in the opinion of the Minister to justify a prosecution for the offence, came to his knowledge”. However, Mr Gourlay was in overall charge in respect to the investigation going on, and he held the view that the “day” was August 28, 1963. Mr Micay learned of Gourlay’s view on this point at a subsequent meeting on December 20, 1963, and I find, on Mr Micay’s evidence, the taxpayer was told by Mr Micay of this, as well as other details of that December meeting.

Gourlay went to Winnipeg in September 1963 and reviewed the evidence with the staff there. He felt satisfied fraud in the criminal sense could be proved to the extent of approximately $277,000 (under various heads). In addition there were other large sums which he felt could be assessed as income, but there might be difficulty proving fraud in respect to those items if they were included in charges to be laid. On the same visit, because of some further information which had come to light, he instructed the Departmental staff to investigate the years 1945 to 1949, which up to that point had not been reviewed.

On October 2, 1963 a lengthy meeting was held in the Departmental office in Winnipeg. This was referred to in the evidence as the “Final Interview” meeting.

This meeting, which began in the early afternoon, was called to present to the taxpayer the gist of the Department’s case, to give selected examples in respect to general heads of alleged evasion or alleged tax liability, and to give the taxpayer an opportunity to make any explanation he wished. Mr Micay, his partner Mr Harry. Walsh (a well-Known and very experienced barrister) and Mr B W Nitikman, a chartered accountant, attended with the taxpayer. Mr Reynolds conducted the meeting. Mr James Mackay and Mr R Pinilo of the Department were also present. I need not go into the evidence in respect to that meeting in detail. Again Mr Micay took elaborate notes, as did others present. It is sufficient to say that quite a number of examples of alleged evasion, suppression, or fraud were presented. The documents which the Department relied on were in the room where the meeting was held including photostatic copies of a few pages taken from journals or diaries kept by the taxpayer. I shall refer to this fact again later.

Reynolds went through all his examples and then there was an adjournment while the taxpayer consulted his advisers. The meeting then resumed and certain explanations were given through Mr Micay. I accept the taxpayer’s assertion that he could not explain at that moment all the matters that had been brought out because some of them had occurred some years before and he did not have his records. At the same time I must say that the explanation he gave in respect to some of the items was to say the least, inaccurate, and in respect to two particular items, untrue. Firstly, with respect to a letter he had written (Exhibit A 330, p 17), he said it was a method of paying the addressee money so that it would not appear to that person to be charity. The explanation is not supportable. Secondly, Reynolds had alleged suppression of $23,276.53 in mortgage interest over the years and gave as examples, what was called the Cobb mortgage and the Broadway Florist mortgage. The taxpayer denied ever having received interest from Cobb (his wife’s personal records in fact recorded it) and in respect to the other mortgage interest, he said they were mortgages actually held by other members of his family, but in his name, and that those other members of his family actually received the moneys. The taxpayer at trial conceded this explanation was not correct. I go further and say it was untrue. This explanation was substantially given again in writing on the taxpayer’s behalf when a submission was made to the Deputy Minister in Ottawa in April 1964.

It is conceded that at that meeting of October 2, 1963 no threats were made, nor was there any discussion as to possible settlement or disposition of the matter, short of prosecution. I think it obvious the taxpayer and his advisers knew as a result of that meeting that the Departmental officials in Winnipeg certainly were proceeding on the basis of prosecution, and that large amounts of potential income tax were in the minds of those officials.

The report on the final meeting by the Winnipeg office is dated October 4, 1963. On October 10, 1963 Mr Micay telephoned the Deputy Minister in Ottawa indicating he was prepared to discuss settlement on behalf of his client. It is unclear from the evidence whether Mr McEntyre at that time had actually read the October 4 report, but he knew the interview had taken place. No commitment of any kind was given, other than an assurance that Mr Micay would be advised of the Department’s ultimate decision.

Shortly after this telephone call the Deputy Minister reviewed the file, together with the report on the final interview, and an appointment with Mr Micay was made for December 20, 1963. There also were present Mr Gourlay and Mr Potvin (one of the Departmental officials). Again Mr Micay made extensive notes which are part of Exhibit B 332. Again there is not too much dispute as to what went on at the meeting. Mr McEntyre indicated the Department’s calculation of the tax owing had increased since the previous meeting in Ottawa. In my view, Mr Micay’s main object at this meeting was to see if some settlement short of prosecution could be reached. A figure of $400,000 was mentioned by Mr Micay but no commitment of any kind was given by Mr McEntyre. The Deputy Minister indicated he felt charges should be laid and a Court should fix the penalty. He said he did not intend to bargain in the matter.

Shortly thereafter the Department substantially completed its investigation of the years 1945 to 1949 and the local office submitted their figures to Ottawa. On January 6, 1964 Mr Micay had a conference with the taxpayer and the accountant Mr Nitikman, in which the taxpayer’s involvement in New Manitoba Mines Limited was discussed (Exhibit 334).

A further meeting with the Deputy Minister and Mr Micay took place in Ottawa on January 16. Mr Gourlay was again present along with a Mr Bradshaw, also of the Department. Mr Micay was advised by the Deputy that the total tax claim against Eco was $156,307, the total tax claim against the taxpayer was $686,000 plus interest of $344,000. These figures did not include any penalties. The figures given by the Deputy Minister at this time included figures for the years 1944 to 1959.

Mr Micay was given some details of the Department’s views concerning the substantially increased figures Mr Micay was given. Again Mr Micay endeavoured to discuss settlement but the Deputy Minister was not interested even when the suggested figures approached $600,000. Both the Deputy Minister and Mr Gourlay expressed the view this was the kind of case that should be determined in the Courts. I take it from that, they meant the criminal courts in respect to alleged fraud, and the civil courts in respect to mere disputes as to assessments.

Again at this meeting, as at all previous meetings with Mr Micay, there were no threats, nor any promises of any kind in respect to settlement.

On February 26, 1964 Mr Micay had a further meeting with the taxpayer and representatives of his accounting firm. Mr Walsh was also present. Again the taxpayer’s position in respect to New Manitoba Mines Limited was discussed with him. It will be remembered that the Department of National Revenue was and had been alleging a tax involvement of $250,000 in respect to the taxpayer’s dealings with that company.

In March of 1964 the file was referred by Revenue to the Department of Justice with a recommendation that counsel be appointed. Mr C G Dilts, of Winnipeg, was, by letter dated March 31, 1964, appointed as agent to review the file with a view to prosecution and to report and make his recommendations to the Department of Justice. The taxpayer was advised of the appointment of counsel by letter dated April 1, 1964. Mr Dilts started working on the documents in the latter part of March 1964, and spent a great deal of time on this matter from then on.

On April 8, 1964 he wrote an interim report to the Department of Justice indicating he had spent some time reviewing the Department’s material. He expressed the view then that the evidence he had looked at clearly supported charges being laid against the taxpayer, Eco, and possibly against the taxpayer’s wife. He submitted a further report to the Department of Justice on April 22, 1964, commenting on representations that had been made on behalf of the taxpayer to the Deputy Minister by a Toronto law firm on April 7, 1964.

By June 22, 1964 Mr Dilts had reviewed in detail 90% of the documentary evidence which the Department had and he had decided to recommend that charges should be laid under paragraph 132(1 )(d) of the Income Tax Act: wilful evasion. Around that date he met with Mr Gourlay and Mr J M Bentley of the Criminal Law Section, Department of Justice, in Winnipeg, to try and separate the various items, those which would be the subject of prosecution and those which would be for reassessment only. Mr Dilts knew there was a deadline in August and Mr Gourlay wanted the proposed charges in his hands by August 1, 1964.

Up to this point Mr Dilts had had no discussion with the taxpayer or his representatives, although Mr Micay and Mr Dubin, a Toronto lawyer apparently engaged by the taxpayer through Mr Micay in April of 1964, had been in touch with him. Mr Dilts had been unwilling to discuss the matter because he was still reviewing it.

On June 24, 1964 Mr Walsh came to Mr Dilt’s office. Mr Dilts did not make any notes of this first meeting between the two of them and neither did Mr Walsh. Both these gentlemen were excellent witnesses and both have the highest regard for each other. Mr Walsh cannot recall exactly why he decided to see Mr Dilts. It may have been that he met Mr Gourlay who was in Winnipeg around that time or he may have heard that Mr Dilts was working on the prosecution aspect of the case. In any event Mr Dilts told him that he was in the process of drawing up charges against the taxpayer and Eco.

Mr Walsh expressed concern about the publicity which would occur just by the mere laying of charges, that it would probably be the end of the taxpayer’s political career, and would, of course, hurt his family. Mr Walsh inquired whether the matter could be settled and Mr Dilts, although he held out little hope, said he would have to take instructions from Ottawa.

In my view Mr Dilts got the impression from Mr Walsh that it was possible the taxpayer might concede full tax liability.

On the next day, June 25, 1964, Mr Dilts telephoned Mr Bentley and Mr Gourlay in Ottawa. He told Mr Gourlay of his meeting with Mr Walsh. Mr Gourlay indicated he would have to speak with the Deputy Minister but expressed his own view there might be a chance of the case being resolved providing certain conditions were met. These tentative conditions were that the taxpayer and Eco would accept the Department’s figures, there would be no particulars supplied, and there would have to be a waiver of appeal from the reassessments. Gourlay also felt there would have to be some commitment in writing before he could discuss the matter with the Deputy Minister.

Mr Dilts called Mr Walsh and told him briefly of his conversation with Mr Gourlay. He also told Mr Walsh the total figure involved would be in the neighbourhood of $1,200,000. On June 26, 1964 Mr Walsh saw Mr Dilts. Mr Dilts said no decision had been made but an offer would be considered and that he wanted a letter of commitment from the taxpayer, and from Mr Walsh.

A draft letter of commitment was drawn up by Mr Walsh and as I follow the evidence was revised somewhat by Mr Dilts and that revision revised somewhat by Mr Walsh. The final product was typed in Mr Walsh’s office. A deadline of July 2, 1964 was set. The letter of commitment was signed on July 2. It is as follows:

Mr C Gordon Dilts,

Barrister & Solicitor,

503 Electric Railway Chambers,

WINNIPEG, Manitoba.

Dear Mr Dilts:

Re: Mark Gerald Smerchanski and Eco Exploration Company Limited

(no personal liability)

We, Mark Gerald Smerchanski and Harry Walsh, hereby jointly and severally commit ourselves unconditionally to the payment in cash of .the total income tax liability of Mark Gerald Smerchanski and Eco Exploration Company Limited (no personal liability) (including interest and penalties) for the years 1945 to 1959, both inclusive, as determined by the Department of National Revenue, such payment to be made upon our being advised by the said Department of the total amount of such liability. It is agreed and understood that the total amount of such liability will be accepted and approved by us without question or reservation and without any demand whatsoever being made of the Department of. National Revenue for particulars of the total amount involved. It is further agreed and understood that Mark Gerald Smerchanski will personally assume payment of the total liability as assessed against Eco Exploration Company Limited (no personal liability).

We, Mark Gerald Smerchanski and Eco Exploration Company Limited (no personal liability) do hereby further unconditionally waive any and all right of appeal from the income tax assessments or re-assessments that are now made or about to be made by the Department of National Revenue for the Said years.

This letter will also serve to confirm that all counsel and accounts that have been retained for or on behalf of Mark Gerald Smerchanski and Eco Exploration Company Limited (no personal liability) have been familiarized with the contents of this letter, and that they are all in accord with it and are prepared to the extent applicable to be bound by it.

It is further agreed and understood that the commitments contained in this letter are binding upon the heirs, executors and administrators of Mark Gerald Smerchanski and upon the successors and assigns of Eco Exploration Company Limited (no personal liability).

DATED at Winnipeg in Manitoba, this 2nd day of July, 1964.

“M G Smerchanski”

“Harry Walsh”

ECO EXPLORATION COMPANY LIMITED (NO PERSONAL LIABILITY)

Per: “P N Smerchanski”

President

“Phillip Smerchanski”

Secretary.

Mr Walsh candidly testified there was no promise of any kind given that a prosecution still would not take place although obviously it was in the minds of all concerned that if the terms of the commitment were carried out a prosecution would probably not take place.

There is no doubt these discussions between Mr Walsh and Mr Dilts which commenced on June 24, 1964 were communicated to the taxpayer by Mr Walsh. Mr Micay was also kept advised.

The documents of July 10, 1964 previously set out in these reasons were signed on that date in the presence of Mr Walsh.

In the early discussions between Mr Dilts and Mr Walsh the question of particulars was brought up and Mr Walsh said that Mr Dilts advised him his instructions were there were to be no particulars. Mr Walsh so informed the taxpayer, and I reject the taxpayer’s suggestion that he was not so told.

Mr Walsh has a clear recollection that he and the taxpayer persuaded a bank to open its doors on the July 1, 1964 holiday in order for Mr Smerchanski to make arrangements to raise the sum of $1,200,000 which was the outside figure that Mr Dilts had given. The actual amounts set out in the document of July 10, 1964 for each year were finally decided by Mr Dilts after discussions with Winnipeg officials: that is, which items involved misrepresentation where a penalty could be levied, or which items were merely a matter of reassessment.

On July 8, 1964 Mr Diits, by letter delivered to Mr Walsh, enclosed Notices of Reassessment for the years 1945 to 1959 inclusive, the documents ultimately signed on July 10, 1964, and the draft authorization in respect to the $200,000 paid to the Receiver General earlier.

I now return to the taxpayer’s contention he was subjected to undue influence or duress in respect to the signing of the letter of commitment and the documents of July 10, 1964, and that these agreements are voidable. The taxpayer says he met with Mr Walsh in the latter part of June of 1964, and was told by him that Mr Dilts was getting ready to lay charges by way of indictment. The taxpayer said he was “surprised and flabbergasted”. I cannot accept that statement. I am sure he was frightened and concerned that what had been in the offing for so long was now about to happen. The taxpayer in my view knew as early as the meeting in August of 1963 with the Deputy Minister in Ottawa that the Department was intending to prosecute and there was nothing said in the subsequent meetings in Ottawa which I have referred to, which could have led him to believe there would be no prosecution. I accept his evidence he was assured from time to time by his many advisers including Mr Micay there was in their minds a possibility of some settlement.

The taxpayer saw Mr Walsh on June 25, 1964. He says Mr Walsh informed him there could be a settlement in the amount of approximately $1,200,000, otherwise there would be a prosecution by indictment. He describes the advice given to him by his legal advisers as an ultimatum—“sign, or go to jail”. If there were an “ultimatum” it did not come from the Minister or any of his representatives. The taxpayer had competent legal advisers, and they obviously felt he was in serious trouble.

The taxpayer admits signing the letter of commitment dated July 2, 1964, of making arrangements with the bank on the July 1 holiday, and signing the documents of July 10, 1964.

He says he felt he was being unfairly treated and there should have been some explanation or breakdown of the amount assessed by the Minister.

On the other hand the evidence of Mr Micay and Mr Walsh as to these matters is clear. Mr Micay knew as a result of his meetings with the Deputy Minister the amounts of tax the Department alleged were owing and the general areas in which those amounts fell. Mr Micay had several meetings with his client prior to the events of late June and July. I have already mentioned two of these meetings at which New Manitoba Mines Limited was discussed, and I surmise the taxpayer’s general tax position was canvassed at the same time. Mr Micay says both he and Mr Walsh gave advice to the taxpayer in respect to the agreements of July 1964. It was Mr Micay’s opinion, and he says Mr Walsh’s, that if the taxpayer were prosecuted he would be found guilty of fraud and would go to jail. I set out his evidence:

Q. You have expressed the opinion that you thought that Mr Smerchanski would be found guilty on the evidence the Crown had, are those your words?

A. No, I said, or I thought that the prosecution on indictment, if it went ahead, he would be found guilty and go to jail, yes.

Q. Was this because of your examination of the evidence? A. On the basis of everything we knew on the matter up to that date.

Q. This is what I am trying to ascertain, whether you had examined any material with the Department? A. I heard the Department’s allegations. I heard what he had to say about them and it conformed to the concensus of our best opinion. That’s what we were there for.

Q. And so what you are saying, then, if I can put it this way is that on the assumption that the allegations were correct, this would be your conclusion?

A. I am saying to you, sir, that —

HIS LORDSHIP: You are getting close to cross-examining your client. I think I understood his answer. It was quite clear to me that he heard the Department’s allegations and on the basis of what he said, that is not what Mr. Smerchanski said.

THE WITNESS: I suggest to you that Mr Walsh was the chief man on that aspect of the matter and it was really his opinion more than mine in the matter. It happens to coincide but you will have an opportunity to go into that with him.

MR IRVING: Q. I am trying to understand what the opinion was based on?

A. Based on everything we knew about the matter.

Q. Which was what? A. Which — most of which you have heard ‘here today. The explanations that were given to us; not all of which have been read, the meetings that were held —

HIS LORDSHIP: The explanations by whom?

THE WITNESS: From our client. That is in the presence of his accounting advisers, the allegations that were made and the extent to which they were unanswered or the answers that were given. There was no question at all in my mind and there was no question in Mr Walsh’s and we both expressed this opinion to Mr Smerchanski that he would be found guilty and go to jail if the matter proceeded.

MR IRVING: Q. Do you examine the material that the allegations were based on? A. No, I have given you a complete answer on that point, Mr. Irvnig. We examined everything we knew about the matter and they would only give us certain things, which is what we were objecting to, but we had heard enough to satisfy us what the conclusions would be, in our opinion, and we so advised our client.

MR IRVING: That is fine, thank you.

Mr Walsh’s evidence is as follows:

HIS LORDSHIP: And we were talking here about a very, very substantial sum of money. Mr. Micay in answer to a question, said that on the basis of what he had heard in the Department’s allegations and on the basis of what Mr Smerchanski said, that he felt that there was a great risk that any prosecution was going to find your firm’s client guilty and added that Mr. Walsh had the same opinion.

THE WITNESS: I did and I still have it, my lord.

HIS LORDSHIP: I take it you knew, perhaps not in detail, but the main allegations being made and you also had had the benefit, you and Mr Micay, of discussing some of these things with your client?

THE WITNESS: I knew of the great risk not so much from Mr Smerchanski as I knew from the six-hour meeting that had taken place in October of 1963 which I sat through listening to the allegations that were being made.

HIS LORDSHIP: So it was partly on that that you came to the conclusion that you did that there was a great risk to your client?

THE WITNESS: Yes, there was a great risk not only from the aspect of the adverse publicity and the smashing of Mr Smerchanski in the process, even if he was acquitted, but there was also a risk of being convicted and on indictment the risk of a minimum jail term of two months.

HIS LORDSHIP: And it was the basis, considering all those matters, that you recommended that he sign these documents?

THE WITNESS: Yes, my lord.

I point out here that at the hearing solicitor-client privilege was waived.

It seems to me the taxpayer’s chief complaint in respect to the events which occurred in early July 1964 was that he was not given particulars in respect to the Departmental figures. I find that he was advised by Mr Walsh that particulars would not be given and with that in mind he nevertheless signed the letter of commitment and the documents of July 10, 1964.

There is, in my mind, no evidence to support the plea of undue influence or duress exerted by the Department or any one of the officials

who dealt with what 1 will call the Smerchanski file. In cross-examination the taxpayer admitted he could not identify any one person. He i vaguely made reference to the Department officials who were responsible

for the terms set out in the documents he signed. The taxpayer was and is neither naive nor untutored. He knew there were serious allegations being made against him and it is obvious he knew some matters, at least, could not be explained. I cite again the example of the failure to declare interest on mortgages.

In my view he had competent legal advice, accepted it, and acted on it.

I now turn to what the taxpayer’s counsel described as the main thrust of his argument: that the documents or agreements of July 10, 1964 are against public policy and morality in that the Minister had no authority to stipulate for the terms set out: particularly the waiver of the right of appeal.

In essence, the agreements of July 10, 1964 provided: (1) The taxpayer approved the amount of each reassessment and acknowledged they included tax, interest, and penalties. (2) The taxpayer. expressly admitted liability for the amounts. (3) The taxpayer expressly waived any right of appeal.

In the letter of commitment he expressly agreed not to demand particulars of any reassessment. This is now one of his reasons for attempting to appeal the assessments. I find no merit in the contention. Under the Income Tax Act there is no requirement that the Minister must give particulars of any assessment or reassessment.

It seems to me the position was this: The Minister had several alternatives in respect to the Smerchanski case. He could prosecute under paragraph 132(1 )(d) of the Act by indictment or by summary conviction. The proposed prosecution was not going to embrace all the income the Department thought taxable, but only that portion where it was felt wilful evasion or attempted evasion could be successfully established. Another avenue open to the Minister was to reassess under section 46 of the Act and impose penalties under subsection 56(1) of the Act on those portions of the tax in which it was considered there had been wilful evasion.

In this case the taxpayer, through Mr Walsh, (at what might be called the eleventh hour when the formal prosecution had almost started) initiated the so-called settlement. He was not invited to do so by anyone in or connected with the Department of National Revenue or the Department of Justice. As Mr Gourlay expressed it, this was the first indication, from the Department’s point of view, of any change in the attitude of the taxpayer. Because there had been a number of advisers, both accountants and lawyers, acting for the taxpayer (particularly in the spring and early summer of 1964) with a series of representations plus requests for access to all the records, the Department, as I see it, would not consider proceeding under sections 46 and 56 unless the whole matter could be completely and finally concluded.

In my view, the Minister through his representatives merely indicated to the taxpayer (through Mr Walsh) some basic conditions which, if agreed to, would be considered. The essential ones were an admission of liability, and the waiver of appeals. I repeat here that Mr Walsh’s testimony was very definite: there was no undertaking on behalf of the Minister that, even if these conditions were met, there would be no prosecution.

In fact, the Minister considered the commitment offered by the taxpayer and Mr Walsh and then decided to conclude the whole matter by proceeding under sections 46 and 56: reassessment, including tax, interest, and penalty.

The taxpayer agreed to waive his rights of appeal from any reassessments and as I view the sequence of events, with full knowledge of what this meant, and before any decision was made by the Minister. He signed the commitment of July 2, 1964. Between that date and July 10, 1964 the Minister, on the basis that this promise and others would be carried out, came to the decision I have earlier stated. The taxpayer then expressly waived his rights of appeal in the agreements of July 10.

In my opinion the taxpayer’s right to appeal assessments is a private right, and not a public right in the sense that the appeal provisions in the Act express a public policy. I am also of the view that the right can be waived by a taxpayer, and that it was done in this case. In Griffiths v The Earl of Dudley (1882), 10 QBD 357, the Court held that a contract whereby a workman expressly agreed not to claim compensation for personal injuries under the Employees Liability Act, 1880 was not against public policy. In Toronto v Russell, [1908] AC 493, the Privy Council decided that a provision in a municipal taxing statute requiring notice of the sale of property for tax arrears could be waived by the taxpayer. I cite from a portion of the headnote in Credit Foncier Franco-Canadien v Edmonton Airport Hotel Co Ltd et al (1964), 43 DLR (2d) 174:

Although s 34 (17), (18) of the Judicature Act, RSA 1955, c 164, precludes a mortgagee from enforcing the personal covenant to pay in a land mortgage and limits his rights to the land, the benefit of this provision may be waived by a guarantor of the debt since it was not passed for the public benefit or aS expressing a public policy but for the personal benefit of those whom it seeks to protect.

While the facts in those cases are dissimilar to the facts in this case, I think the principles discussed there are applicable here.

At the beginning of the argument, counsel for the taxpayer stated he would abandon any contention that the agreements of July 10 were invalid on the grounds they involved the stifling of a prosecution. Mr Irving frankly expressed his opinion there was no evidence to support such an argument. I agree.

At some point in this hearing, it was contended that the reassessment notices for the years in question had not been personally sent or given to the taxpayer, and the Minister therefore had not strictly complied with the statute. This was not pursued in the final argument. In any event, the evidence is clear the assessments were delivered on July 8, 1964 to Mr Walsh, his counsel, and the taxpayer expressly acknowledges receipt of them in the agreements of July 10, 1964. I find against this objection.

As I said early in these reasons, I have concluded these appeals must be dismissed.

A further argument, however, was advanced on behalf of the respondent in support of his position that the taxpayer has no right to pursue these appeals. It is contended the taxpayer is estopped by his conduct. Some further facts must be outlined to appreciate this submission. After the agreements of July 10, 1964 were signed, the taxpayer requested the return of all his records. They were delivered to him on July 20, 1964. The date of August 28, 1964 passed with no charges laid against the taxpayer. Within the 90-day period provided by subsection 58(1) of the Income Tax Act, Notices of Objection were filed. They are dated October 5, 1964. Notices of Appeal to the Exchequer Court were filed on February 22, 1965.

In November of 1966 it was agreed by the parties, in order to prepare for these appeals, that all the taxpayer’s relevant records would be placed in a room in the Mall Building in Winnipeg under joint control of the appellants and the respondent. As preparation of the appeals proceeded, it was discovered that quite a number of documents were missing, some of them, from the respondent’s point of view, quite significant. Some were eventually located, but a large number have not been found. I stated earlier the Departmental staff in the course of their investigation, had made photostatic copies of a large number of documents and records. These photostatic copies had been retained.

The respondent accuses the taxpayer of responsibility for the missing documents. I make no finding in this respect.

Among the documents and records originally seized were seventeen daily journals kept by the taxpayer. These are the type of journal or diary kept by many businessmen on their desks and have one page for each day of the year, plus additional pages. In this case the journals were for the years under review here. They contain many entries and notations and generally speaking, though not always, the notes are written in the present tense and appear to have been made contemporaneously. Some time after the records were placed under joint control it was discovered, by comparison with earlier photostats of pages, that a large number of additions had been made io these journals, that certain typewritten memoranda originally pasted in the journals were missing, and some pages were missing. The taxpayer denies removing any memoranda or pages, but admits he made the additions. Two large volumes containing photostats of many original diary pages and the pages as added to were filed as exhibits (A 342 and A 351). The latter exhibit was prepared during the course of this hearing.

The taxpayer said the additions were made by him in 1965 and 1966, after consulting with other persons (mainly his brother Phillip, now deceased) who refreshed his memory or had records of matters referred to in the original pages, or not mentioned in the original pages. He said the additions were in fact true statements of things which had occurred and he did not feel he was doing anything which could be construed as wrong in making these additions. These were, he says, to try and bring the chronology of events together, and were not intended to mislead or give the appearance of contemporaneous entries.

The Minister alleges he was misled by these additions because of the manner in which they were done. He further asserts, and this is true, that the taxpayer’s wife and his accountant gave certain evidence on behalf of the taxpayer on examination for discovery relying on entries on diary pages, which proved to be additions made many years later by the taxpayer. The taxpayer testified he did not tell his wife or his accountant prior to examination for discovery that he had made additions to these diaries. There is no doubt the taxpayer’s accountant knew nothing of these additions.

I do not propose to review all the evidence relating to the making of these additions or the taxpayer’s explanations. The taxpayer’s explanations, given on examination for discovery and at the hearing as to how he obtained the information to warrant these additions, for whose benefit the information was intended, and his purpose, are, in my judgment, contradictory and unsatisfactory. The majority of the additions and insertions are written in the present tense and, again in many instances, are inserted at places on a particular page which alter the meaning of what was there originally, or lead one to a different inference than one might have drawn from the original page. I shall refer only to one general example. Many original notations could lead one to the inference or conclusion the taxpayer was an active promoter in dealing in shares of New Manitoba Mines Limited. In 1963 and 1964 the taxpayer knew the Minister took the position the taxpayer was liable for very substantial tax in respect to the New Manitoba matters. The taxpayer took the opposite view. I have not heard all the evidence in respect to the New Manitoba allegations, and it may therefore be the taxpayer’s position was and is the correct one. But the added notations, in my opinion, were inserted to create the impression they were made contemporaneously and to influence the mind of anyone reading the relevant pages as they now appear, that the taxpayer could not be classed as a promoter.

I find that regardless of whatever other reason there may have been for these additions, one purpose in adding them in the diaries, was to give the appearance of having been made at the time, and so to assist or provide support for the alleged defences to some, at least, of the matters alleged taxable by the Minister.

The respondent’s position on this question of estoppel can be stated this way:

1. The taxpayer by the agreement of July 10 led the Minister to believe there would be no appeal from the reassessments.

2. The Minister relying on this promise, and the taxpayer’s act in paying the amounts of tax assessed did not prosecute, and returned al! records.

3. The time for prosecution, in the opinion of the Minister, expired before the appeal procedure was begun.

4. The taxpayer, by adding to the diaries, endeavoured to create a misleading or false state of facts on these appeals.

I do not feel it necessary to decide whether the above submissions amount in law to estoppel by conduct. I have already expressed other reasons on which I base my opinion that these appeals must fail. Because, however, this judgment may well be appealed, and because of the extent of the evidence (documentary and oral) adduced in respect to these diaries, I felt it necessary to express my views and findings in respect to them.

There is a second main issue to be decided at this stage of the hearing. Strictly speaking, in view of what I have already written, it is not necessary to decide it, but in the event I am wrong in the conclusion I have come to above, I shall deal with it so that it too may, if necessary, be considered on appeal.

In order to justify the reassessments for the years in question, (that is going back beyond the four-year period set out in subsection 46(4) of the Income Tax Act) it was necessary for the Minister, at the hearing, to prove misrepresentation in each of those years. It was agreed by counsel that so-called innocent misrepresentation, even to the extent of $1 in each year, was sufficient to reopen that year and that the reassessment then made could cover not only the amounts alleged to have been misrepresented by the taxpayer, but other sums where there may have been no misrepresentation, such as the question of capital gain versus income.

The Minister at the hearing took examples of misrepresentation in each year (under various headings) and adduced evidence to prove them. At the close of the Minister’s case in respect to the validity of the agreement and the question of reopening each taxation year, counsel for the appellants conceded misrepresentation (in the sense I have previously described) had been proved in respect to the taxpayer, and said he had been instructed by his client not to contest the reopening of the years applicable to the reassessments against Eco. He did, however, contest the right of the Minister to reassess the years 1945 to 1951 in respect to the taxpayer. His point was concise. The originals of the tax returns filed with the Department for those years, were, in the course of Departmental routine in respect to removal of files, destroyed. To bring himself within subparagraph 46(4)(a)(i) the Minister must show the . taxpayer . . . has made . . . misrepresentation . . . in filing the return . . . ”. He must therefore, in my view, produce the actual return filed, or adduce proof of its filing and misrepresentation in its contents.

In this case, when the taxpayer’s records were seized, there were among them, copies of what appeared to be the actual returns filed for 1945 to 1951. Evidence given on behalf of the Minister was to the effect that Departmental officials had checked what I shall call the copies (which contained assessment notices, and sometimes reassessment notices, and receipts) and had reconciled all the figures set out in the copies and the additional material found with the copies, with account cards kept by the Department. The account cards were missing at the time of trial, but the evidence given by the Departmental officials was they were satisfied, from the reconciliation, the copies found in the posession. of the taxpayer were in all probability true copies of the original returns. In examination in chief, the taxpayer gave evidence in regard to the copies of the returns in question. His signature appeared on all copies except that for 1951. He candidly said it was more than likely or probable that these copies were carbon or true copies of the returns filed with the Department, but could not swear they were exact copies. On the evidence of the Departmental officials who made the reconciliation, and on the admission made by the taxpayer, I find the Minister has proved, on a balance of probabilities, the returns for those particular years.

I have now finished dealing with the two preliminary issues. It was agreed by the parties, and concurred in by me, that each side would have the right to appeal this judgment (even though the hearing on all issues was not completed) to the Appeal Division and: to the Supreme Court of Canada if either side so desired. It was further agreed, and concurred in by me, that if the result of any ultimate appeal was in favour of the taxpayers, then I would be seized of the case, and would resume the hearing in respect to the correctness or otherwise of the reassessments.

At the present hearing, the taxpayer (by agreement) did not adduce evidence to attack the individual items making up the assessments. He, and the other witnesses called on his behalf, testified in chief only in respect to the two issues I have decided.

I add some last few words to a judgment which is already too lengthy. I have made some limited findings in respect to the credibility of the taxpayer. A strong attack on his credibility was made by the respondent at the hearing, but because I have not heard all the evidence, and because I at some future time may have to hear and evaluate the rest of the evidence, I have endeavoured not to state, or come to any final conclusions at this time, on the overall question of credibility. In fairness to the taxpayer, whose credibility and motives, as I have said, were strenuously attacked, I point out that the matter of formal and technical proof by the Minister of a mass of documents was waived, solicitor-client privilege in respect to Mr Walsh and Mr Micay was waived, and while the proceedings before me were in camera as requested by the taxpayer, he consented to these reasons being made public.

These reasons apply in the Eco appeal. The appeals are therefore dismissed. The respondent is entitled to costs.