Date: 20060111
Docket: A-520-04
Citation: 2006 FCA 15
CORAM: LÉTOURNEAU J.A.
NADON J.A.
PELLETIER J.A.
BETWEEN:
CLAUDE DESAULNIERS
Appellant
and
THE MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR JUDGEMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec, on January 11, 2006.)
LÉTOURNEAU J.A.:
[1] This is an appeal from a decision by the Tax Court of Canada, which concluded that the appellant, Mr. Desaulniers, as well as other workers, were part of a scheme by which the Employment/Unemployment Insurance benefits they received financed to a large extent the salaries their employer paid them. In this decision, the Tax Court of Canada upheld in part the determination of the Minister of National Revenue concerning the appellant.
[2] At the hearing before the Tax Court of Canada, the parties agreed that the outcome of the case depended essentially on the credibility of the persons involved (see paragraph 53 of the decision).
[3] Mr. Justice Lamarre, before whom the hearing was held, made a meticulous and detailed analysis of the often contradictory evidence. She had the privilege of seeing and hearing the witnesses, of noting their omissions and hesitations, as the case may be, and of assessing their behaviour. Obviously, we do not have this advantage and privilege when, as in the case at bar, we are called on to assess their credibility and to come to a conclusion contrary to the one reached by the judge in the appellant's case.
[4] This challenge, which is already Herculean, is impossible to meet when, as in this case, the transcript of the testimonies is not in the appeal record. In such a case, it is impossible to examine the appellant's affirmations concerning what these witnesses said or did not say about him.
[5] Likewise, without falling into speculation and arbitrariness, it is impossible to determine whether the criticism of the judge's assessment of the credibility of the witnesses is well founded. The only tools we have are the reasons for judgment given, which as we have already mentioned are very detailed and well reasoned. We cannot conclude on the basis of these reasons that she made findings or inferences of fact that were unreasonable and which warrant or require our intervention
[6] Quite skilfully, counsel for the appellant submitted that the refusal by the judge to grant a postponement of the hearing, which had been requested at the beginning of the day, caused irreparable harm to his client and was a denial of natural justice.
[7] He based his argument on the fact that the ten (10) volumes of documentary evidence and documents were disclosed to him by the respondent only three days before the hearing, although he had requested them more than one month earlier.
[8] It would have definitely been preferable if this evidence containing the respondent's position concerning the appellant and Pourvoirie Au Pays de Réal Massé Inc. (the Outfitter) had been disclosed to the appellant earlier. We deplore the fact that this was not the case. However, we are not convinced that this caused harm and a denial of justice that would warrant an order for a new hearing, as was requested.
[9] In fact, Mr. Desaulniers was the appellant before the Tax Court of Canada. He had the burden of establishing the merits of his appeal and having witnesses testify to prove his allegations concerning his periods of employment. Undoubtedly, for financial reasons, he decided to proceed with a joint hearing with the other appellant, the Outfitter. This joint hearing considerably broadened the scope of the case as far as he was concerned and increased the number of witnesses and the documentary evidence concerning the Outfitter's appeal. However, he should have been able to proceed with his own evidence at this stage, which is what he did.
[10] The appellant testified. The judge expressed doubt concerning the truth of the appellant's statements to the effect that he did not work during periods not declared never received any compensation from his employer during these undeclared periods (see paragraphs 64 and 65 of the decision).
[11] The appellant also had his employer, Réal Massé, testify on his behalf. The judge questioned this witness's credibility and, in light of all the evidence, concluded that his testimony was "clearly insufficient in and of itself to support Mr. Desaulniers' position" (see paragraph 64 of the decision).
[12] Finally, counsel for the appellant submitted that he had been taken by surprise by the testimony of three witnesses who were unfavourable to him. He stated that, if he had known ahead of time the damaging content of the statutory declarations made by these three witnesses, he would have subpoenaed two other head cooks who had worked with his client, himself a head cook.
[13] Obviously, the appellant could have subpoenaed these witnesses in support of his appeal, his testimony and that of Réal Massé. In admitting that he did not consider it necessary to have them heard, from the moment during the hearing when he realized that it would be important to have them heard, he could have asked the judge at the end of the hearing for an adjournment so he could adduce rebuttal evidence. He did not do so. It is difficult now to infer that there was harm, which he did not mention at that time.
[14] For these reasons, the appeal will be dismissed with costs.
"Gilles Létourneau"
Certified true translation
Michael Palles
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