Date:
20111018
Docket:
A-345-10
Citation:
2011 FCA 287
CORAM: EVANS
J.A.
LAYDEN-STEVENSON
J.A.
STRATAS
J.A.
BETWEEN:
SAEED KORKI
Appellant
and
HER MAJESTY
THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Vancouver, British Columbia, on October 18, 2011)
STRATAS J.A.
[1]
This
is an appeal from a judgment of the Tax Court of Canada (per Justice
Little): 2010 TCC 384.
[2]
In
2002 and 2003, the appellant reported net income of $19,100 and $22,312,
respectively. The Minister conducted a net worth analysis of the appellant and
filed reassessments. After reviewing the appellant’s notice of objection, the
Minister issued a revised notice of reassessment. The revised notice of
reassessment alleged that the appellant failed to report business and pension
income in 2002 and 2003 of $287,340 and $177,380, respectively. The Minister
also imposed gross negligence penalties for failing to report this income.
[3]
The
appellant appealed to the Tax Court against the revised reassessments. The Tax
Court dismissed the appeal.
[4]
We
see no reviewable error in the Tax Court’s decision. The Tax Court “found much
of the evidence unreliable,” noting “various contradictions and inconsistencies
in the evidence” (at paragraph 47). That finding was supported by its detailed review
of the evidence (at paragraphs 28-46). The appellant has not convinced us that
the Tax Court’s factual findings are vitiated by any palpable and overriding
error.
[5]
In
his memorandum of fact and law and in his oral submissions before us, the
appellant focused upon four particular grounds of objection to the Tax Court’s
decision.
[6]
First,
the appellant submitted that the Tax Court failed to understand the relevant
burden of proof as explained in Hickman Motors Ltd. v. Canada, [1997] 2
S.C.R. 336. In our view, a fair reading of the Tax Court’s reasons shows that
the Tax Court appreciated the burden of proof. It simply did not accept that
the appellant had adduced credible evidence in the matter before it.
[7]
Second,
the appellant submitted that the Tax Court failed to have regard to certain
sworn certificates and documents in Iran that established the
existence of a trust held for his father. The appellant oversaw or participated
in the creation of many of these certificates and documents. In our view, the Tax
Court’s overall view of the appellant’s credibility combined with the absence
of evidence from witnesses in Iran who were involved in the creation of these
documents (which could have been obtained by way of motion under Rule 119 of
the Tax Court of Canada Rules) caused it to ascribe little weight to
these documents. In particular, we note that some of the evidence that the Tax
Court considered to be inconsistent and unreliable related to the matters with
which these certificates and documents were concerned. The appellant has not
established any palpable and overriding error that would cause us to set aside
these factual findings by the Tax Court.
[8]
Third,
the appellant submitted that the Tax Court did not have a basis for finding
gross negligence so as to engage the penalty provisions of subsection 163(2) of
the Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1. It is true that in
the particular section of its reasons in which the Tax Court stated that a
penalty should be imposed, the Tax Court judge mentioned very few facts.
However, the Tax Court’s reasons for judgment, when read as a whole, set out
ample facts capable of sustaining the Tax Court’s finding of gross negligence.
[9]
Fourth,
the appellant took issue with certain comments made by the Tax Court judge
during the appeal. The Tax Court judge commented that he would be better able
to assess the appellant’s credibility as a witness if he testified in English,
rather than testifying through an interpreter. In this Court, the appellant
complains that this comment and others suggest that the Tax Court judge had
pre-judged the appellant’s credibility in some way, and, thus, was biased. We
note that the appellant never objected in any way to the judge’s comments. The
judge gave the appellant and his counsel a break to consider whether the
appellant should testify in English. After the break, the appellant expressly
chose to testify in English. No timely objection based on pre-judgment of
credibility or bias was made then, or at any time, during the proceedings. It
was incumbent on the appellant to make a timely objection of bias if he felt
that bias was present: Bassila v. Canada, 2003 FCA 276 at paragraph 10.
The appellant’s failure to object is a waiver of any issues arising from the
judge’s comments. In any event, we are not satisfied that the appellant has met
the high standard of proof necessary to establish bias on the part of the
judge.
[10]
Before
the appeal hearing in this Court, the appellant brought a motion to introduce
certain evidence that was not before the Tax Court. The motion was dismissed,
but without prejudice to the appellant’s ability to reargue the motion before
the panel hearing the appeal. During this appeal hearing, the appellant
reargued his motion.
[11]
The
evidence the appellant seeks to admit is a video recording of an examination in
chief of his father, conducted in Iran. Counsel for the
appellant acknowledges that in the video the father simply repeats statements
he made in a letter, signed by him, that was already before the Tax Court.
[12]
The
test for the admission of fresh evidence under rule 351 is set out in the
decision of Justice Evans in Canada v. Canada (Canadian
Council for Refugees), 2008 FCA 171 at paragraph 8. The evidence must
not have been “discoverable with reasonable diligence before the end of the
trial.” It must also be credible. It must be “practically conclusive of the
appeal.” Finally, despite not satisfying these requirements, it might still be
admissible “if the interests of justice require it.”
[13]
Counsel
admitted before us that the evidence the appellant seeks to introduce in
this Court was “discoverable with reasonable diligence” before the end of the
Tax Court proceedings. Further, as evidence that merely corroborates evidence
that was already before the Tax Court, it is not “practically conclusive” of
the appeal in this Court. We see no other considerations in the interests of
justice that would prompt us to admit it. Therefore, we decline to admit the
evidence.
[14]
Based
on counsel’s description of the video’s contents, even if we had admitted the
video into evidence, we still would have dismissed the appeal, for the reasons
set out above.
[15]
Therefore,
we shall dismiss the appeal with costs.
"David Stratas"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-345-10
APPEAL
FROM A JUDGMENT OF THE HONOURABLE MR. JUSTICE LITTLE OF THE TAX COURT OF
CANADA, DATED JULY 15, 2010, DOCKET NUMBER 2008-74(IT)G (2010 TCC 384)
STYLE OF CAUSE: Saeed
Korki v.
Her Majesty The Queen
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: October 18, 2011
REASONS FOR JUDGMENT OF THE
COURT BY: EVANS, LAYDEN-STEVENSON, STRATAS JJ.A.
DELIVERED FROM THE BENCH BY: STRATAS J.A.
APPEARANCES:
|
D. Laurence Armstrong
|
FOR
THE APPELLANT
|
|
Bruce Senkpiel
Max
Matas
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Armstrong Wellman
Barristers
& Solicitors
Victoria, British Columbia
|
FOR THE APPELLANT
|
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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