Sturtevant v. Canada, 2006 FCA 304

Date: 20060914

Docket: A-407-05

Citation: 2006 FCA 304

CORAM:       DÉCARY J.A.

                        LÉTOURNEAU J.A.

                        NADON J.A.

BETWEEN:

LLOYD STURTEVANT

Appellant

and

HER MAJESTY THE QUEEN

Respondent

Hearing held at Montréal, Quebec, on September 14, 2006.

Judgment delivered from the bench at Montréal, Quebec, on September 14, 2006.

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

Date: 20060914

Docket: A-407-05

Citation: 2006 FCA 304

CORAM:       DÉCARY J.A.

                        LÉTOURNEAU J.A.

                        NADON J.A.

BETWEEN:

LLOYD STURTEVANT

Appellant

and

HER MAJESTY THE QUEEN

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the bench at Montréal, Quebec, on September 14, 2006)

LÉTOURNEAU J.A.

[1]               Despite Mr. Jodoin’s efforts, we have not been persuaded that Mr. Justice Angers of the Tax Court of Canada made an error in determining the appeal that was before him, an error that would justify our intervention. Both the material and oral evidence allowed him to make the findings of fact that he did in support of his decision.

[2]               Counsel for the appellant focused on the following passage at paragraph 28 of the decision to conclude that the judge had applied a more onerous burden of proof than the balance of probabilities that normally prevails:

What is certain is that all the equipment was owned by the Company on May 1, 1990. No evidence brought before me enables me to find with certainty that the Company again transferred equipment to the Appellant between May 1, 1990 and 1995 year end.

                                                                                                                                             (Emphasis added)

[3]               It is regrettable that the words chosen by the judge could, when viewed in isolation, lead one to believe that he erred regarding the burden of proof required of the appellant. However, with respect, when this sentence is placed in its context and the entire decision is read, it becomes clear that the judge assessed the evidence submitted by both the appellant and the respondent in accordance with the standard of reasonableness and probability. Moreover, he uses the term “balance of probabilities” at paragraph 42 of his decision to describe the burden that the appellant had to meet:

There is a discrepancy resulting from the net worth method calculation for the 1999 taxation year. The Minister shall make adjustments based on these reasons. The Appellant has not convinced me, on a balance of probabilities, that this discrepancy is anything other than unreported income.

[4]               For these reasons, the appeal will be dismissed with costs.

Gilles Létourneau

Certified true translation

Mary Jo Egan, LLB

FEDERAL COURT OF APPEAL

SOLICITORS OF RECORD

DOCKET:                                                                              A-407-05

AppeAl OF A JUDGMENT OF THE HONOURABLE MR. JUSTICE François Angers OF THE TAX COURT OF Canada DATED AUGUST 16, 2005

STYLE OF CAUSE:                                                              LLOYD STURTEVANT v.

                                                                                                HER MAJESTY THE QUEEN

PLACE OF HEARING:                                                        Montréal,  Quebec

DATE OF HEARING:                                                          September 4, 2006

REASONS FOR JUDGMENT OF THE COURT:             DÉCARY J.A.

                                                                                                LÉTOURNEAU J.A.

                                                                                                NADON J.A.

DELIVERED AT THE HEARING BY:                              LÉTOURNEAU J.A.

APPEARANCES:

SOLICITORS OF RECORD: