Date:
20080916
Docket:
A-291-07
Citation: 2008
FCA 261
CORAM: LÉTOURNEAU
J.A.
NOËL
J.A.
TRUDEL
J.A.
BETWEEN:
HOLLY
WILLISTON
Appellant
and
HER MAJESTY
THE QUEEN
Respondent
REASONS FOR JUDGMENT
TRUDEL J.A.
[1]
This
is an appeal from a judgment of McArthur J. of the Tax Court of Canada (2007
TCC 412) (the Judge) adjudicating on Ms. Williston’s appeals for the taxation
years 1997 through 2005, inclusively.
[2]
The
questions raised in this Court and the Court below most notably pertain to:
(a)
The
inadmissibility of the appeals for the taxation years 1997, 2004 and 2005;
(b)
The
statute-barred reassessment for the taxation year 1998;
(c)
The
income determination for the taxation years 2000, 2001, 2002;
(d)
The
disallowance of expenses related to the appellant’s home office for the taxation
years 1998-1999;
(e)
The
late filing penalties for the taxations years 1998, 1999, 2000, 2001, 2002 and
2003;
(f)
The
gross negligence penalties for the same years as in sub-paragraph (e).
[3]
I
do not consider it necessary to discuss these issues and the arguments in
detail because I am in substantial agreement with the decision of McArthur J.
and with his reasons.
[4]
This
case rests mostly on findings of fact and factual inferences drawn by the
Judge. To succeed in her appeal, the appellant had to show that the trial
judge made a palpable and overriding error in assessing the set of facts
presented to him and in concluding as he did (Housen v. Nikolaisen, 2002
SCC 33).
[5]
Keeping
in mind the trial Judge’s privileged position, "owing to his extensive
exposure to the evidence, the advantage of hearing testimony viva voce,
and the Judge’s familiarity with the case as a whole" (Ibid. at paragraph
18), I find that the appellant has shown no such palpable and overriding error
on the part of McArthur J. that would justify the intervention of this Court.
[6]
McArthur
J. was presiding over an informal procedure appeal with "voluminous
documents and oral evidence" being provided by the parties (at paragraph
11 of his reasons).
[7]
He
adopted the thesis of neither party and formed his own opinion, as he was
entitled to do, assessing the credibility of the parties and witnesses and the
probative value of the exhibits filed on record.
[8]
Referring
to the appellant, he said that she "was basically honest although
misguided" (at paragraph 13 of his reasons). He also found no evidence of
harassment or denial of rights on the part of the Canadian Revenue Agency (CRA),
and more particularly on the part of the auditor appointed to this case,
towards the appellant.
[9]
This
should be enough to dispose of this appeal but before concluding, I intend to
discuss allegations made by the appellant at the hearing of the appeal before us.
[10]
As
she had done before the Tax Court, the appellant raised again her claim of
harassment by the CRA alleging, without an iota of evidence, that the CRA
forged a 2003 bank account statement by adding the appellant’s name to the bank
account of her common-law spouse (AB, Vol.1, p. 68). According to her, the CRA
would have done so to conveniently make that account look like a joint account,
thereby covering any impropriety regarding her common-law spouse’s right to
privacy following unauthorized communications between the CRA and the financial
institution.
[11]
The
appellant also contends that our Court denied her permission to include in the
appeal book copy of a letter from the bank filed at trial which would have
proven this allegation.
[12]
The
record does not support these overbroad assertions. Through a motion presented
under Rule 369, the appellant requested that the Court determine the content of
the appeal book seeking the exclusion of portions of exhibits R-14, R-15, R-16
and R-20. There is no mention whatsoever of said letter in that motion.
[13]
Moreover,
the table of contents for the appeal books shows that all of the appellant’s
exhibits at trial had been made part of the appeal book except for exhibits
A-7, A-9, A-10 and A-22. The last one, A-22, is the only exhibit which is not
described in the list of exhibits prompting the appellant to suggest that it surely
is the letter from the Bank stating that she did not become a co-signer on her
spouse’s bank account before 2005. The Court examined exhibit A-22. The
record shows that it is a publication downloaded from the CRA website regarding
tax audits.
[14]
A
careful examination of the record leads to a single conclusion: the
appellant’s assertion is grossly erroneous. The so-called «missing document»
was obviously not tendered in evidence. In any event, the appellant chose not
to file the transcript of the trial below (see Order of Décary J.A., December
21, 2007).
[15]
In
view of the respondent’s consent to judgment with regard to the gross negligence
penalties for the 1998 and 1999 taxation years, I would allow this appeal for
the sole purpose of deleting gross negligence penalties for those taxation
years. I would dismiss the appeal on all other grounds with costs in favour of
the respondent.
"Johanne
Trudel"
“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-291-07
APPEAL FROM A JUDGMENT OF THE TAX COURT
OF CANADA (2007TCC412) DATED AUGUST 15, 2007, DOCKET NUMBER 2006-2126(IT)I
STYLE OF CAUSE: Holly
Williston v. Her Majesty the Queen
PLACE OF HEARING: Montréal,
Quebec
DATE OF HEARING: September 11, 2008
REASONS FOR JUDGMENT OF THE COURT BY: (LÉTOURNEAU, NOËL, TRUDEL JJ.A)
DELIVERED FROM THE BENCH BY: TRUDEL J.A.
APPEARANCES:
|
HOLLY WILLISTON
|
SELF-REPRESENTED APPELLANT
|
|
SIMON PETIT
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
HOLLY WILLISTON
Lasalle, Quebec
|
SELF-REPRESENTED
APPELLANT
|
|
JOHN H
SIMS,Q.C.
Deputy Attorney General of Canada
|
FOR THE
RESPONDENT
|
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