Boulay v. Canada, 2006 FCA 169

Date: 20060509

Docket: A-263-04

Citation: 2006 FCA 169

CORAM:        DÉCARY J.A.

                        LÉTOURNEAU J.A.

                        PELLETIER J.A.

BETWEEN:

ADRIEN BOULAY

Appellant

and

HER MAJESTY THE QUEEN

Respondent

Hearing held at Montréal, Quebec, on May 4, 2006.

Judgment delivered at Ottawa, Ontario, on May 9, 2006.

REASONS FOR JUDGMENT:                                                                                     DÉCARY J.A.

CONCURRED IN BY:                                                                                        LÉTOURNEAU J.A.

                                                                                                                                 PELLETIER J.A.

        

         Date: 20060509

Docket: A-263-04

Citation: 2006 FCA 169

CORAM:        DÉCARY J.A.

                        LÉTOURNEAU J.A.

                        PELLETIER J.A.

BETWEEN:

ADRIEN BOULAY

Appellant

and

HER MAJESTY THE QUEEN

Respondent

REASONS FOR JUDGMENT

DÉCARY J.A.

[1]                The judge of the Tax Court of Canada dismissed the appellant's appeal in the following terms:

So, Mr. Boulay, this morning you had the onus of showing me, on a balance of probabilities, that the Minister erred in adding business income to your income for the 97 and 98 taxation years in the amounts of $21,205 and $6,449, respectively.

Your explanations concerning the amounts at issue and that appear in summary under tab 18 did not convince me.

Your testimony was inconsistent and was not supported by any other reliable testimony or any other satisfactory documentary evidence.

Finally, I feel the Minister was justified in imposing penalties. He fulfilled the onus of proof in accordance with subsection 163(2) of the Act.

FOR THESE REASONS, your appeals are dismissed

[2]                The appellant is appealing this judgment essentially on the grounds that there was a breach of procedural fairness.

[3]                A brief overview of the facts is in order. For the 1997 and 1998 taxation years, the Minister of National Revenue included in the appellant's reported income certain amounts for unreported business income. The appellant challenged the assessments before the Tax Court of Canada. He is represented by counsel and opted for the General Procedure. The hearing date was scheduled for Tuesday, March 23, 2004. The amount at issue was then approximately $28,000, excluding the penalties of about $2,600.

[4]                On Thursday, March 18, 2004, his counsel served on him a motion to cease representing. The motion was granted the following day, March 19, 2004. The order states that [TRANSLATION] "the appellant agrees with the motion". The hearing proceeded as scheduled on March 23, 2004. The appellant represented himself and did not request a postponement.

[5]                It appears from the transcripts that from the outset, the appellant was not able to represent himself. He told the judge on several occasions that he did not have in his possession any of the documents on which he was relying, as the documents had not been returned to him by his counsel. None of the seven witnesses had been summoned, yet they had been announced by his counsel in the joint application for hearing. The judge himself described his testimony as "inconsistent". Furthermore, the issue of penalties was not discussed during the hearing and on that point the judge confirmed the Minister's decision in a manner that could not have been more summary (see the last paragraph of the reasons cited above).

[6]                Under these circumstances, I am not satisfied that justice could have been served and I am of the opinion that a new hearing is in order.

[7]                I would allow appeal, I would set aside the decision by the Tax Court of Canada and I would refer the matter to that Court, differently constituted, for rehearing.

[8]                I would award the appellant, who was represented before us, the costs of the appeal.

"Robert Décary"

"I concur

J.D. Denis Pelletier J.A."

"Je suis d'accord

Gilles Létourneau J.A. "

Certified true translation

Kelley Harvey, BCL, LLB

FEDERAL COURT OF APPEAL

SOLICITORS OF RECORD

DOCKET:                                                                               A-263-04

APPEAL FROM A JUDGMENT BY THE HONOURABLE MR. JUSTICE PAUL BÉDARD OF THE TAX COURT OF CANADA DATED AUGUST 13, 2004, DOCKET NO. 2001-3808(IT)G.

STYLE OF CAUSE:                                                               ADRIEN BOULAY v.

                                                                                                HER MAJESTY THE QUEEN            

PLACE OF HEARING:                                                         Montréal, Quebec

DATE OF HEARING:                                                           May 4, 2006

REASONS FOR JUDGMENT:                                            DÉCARY J.A.

CONCURRED IN BY:                                                          LÉTOURNEAU J.A.

CONCURRING REASONS:                                                PELLETIER J.A.         

DATE OF REASONS:                                                           May 9, 2006

APPEARANCES:

Sylvain Lavoie	FOR THE APPELLANT
Claude Lamoureux Sophie-Lyne Lefebvre	FOR THE RESPONDENT

SOLICITORS OF RECORD:

Janson & Larente, avocats Montréal, Quebec

FOR THE APPELLANT