Date: 20030623
Docket: A-360-01
Citation: 2003 FCA 279
CORAM: LÉTOURNEAU J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
MARK LESTER ISAAKS
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Vancouver, British Columbia, on June 23, 2003.
Judgment delivered from the Bench at Vancouver, British Columbia, on June 23, 2003.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A.
Date: 20030623
Docket: A-360-01
Citation: 2003 FCA 279
CORAM: LÉTOURNEAU J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
MARK LESTER ISAAKS
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia on June 23, 2003)
SHARLOW J.A.
[1] This is an appeal of the judgment of the Tax Court dated May 15, 2001 dismissing the appellant's income tax appeals for 1994 and 1995. The decision is now reported as Isaaks v. Canada, [2001] 3 C.T.C. 2190, 2001 D.T.C. 645. Mr. Isaaks was assessed on the basis that his profits from the sale of three properties were business income and not, as he claimed, capital gains from the sale of principal residences, which would have been exempt from tax.
[2] Upon reviewing the reasons for the decision of the Tax Court Judge, we are satisfied that he correctly understood and applied the legal principles relevant to this case, which are derived from Friesen v. Canada, [1995] 3 S.C.R. 103, Racine, Demers and Nolin v. Minister of National Revenue, 65 D.T.C. 5098, [1965] C.T.C. 150 (E.C.) and Happy Valley Farms Ltd. v. The Queen, 86 D.T.C. 6421, [1986] 2 C.T.C. 259 (F.C.T.D.).
[3] Mr. Isaaks' appeal is essentially a challenge to the findings of fact of the Tax Court Judge. Such a challenge cannot succeed in the absence of a palpable and overriding error: Housen v. Nikolaisen , [2002] 2 S.C.R. 35. There is no such error in this case. The Tax Court Judge simply did not believe much of Mr. Isaaks' testimony, for reasons that were well explained.
[4] The factual issues raised by Mr. Isaaks were based in large part on evidence that was not before the Tax Court Judge. The reason given for having failed to present this information was that Mr. Isaaks was self-represented and could not afford a lawyer. That is generally not a sufficient reason for permitting evidence to be adduced on appeal. In any event, we are not persuaded that the new evidence would necessarily have affected the outcome. We would also note that the Tax Court Judge was well aware of the difficulties faced by Mr. Isaaks as a self-represented litigant. At the hearing Mr. Isaaks indicated that he wished to call witnesses to speak to some documentary evidence. The trial was adjourned to permit those witnesses to be heard.
[5] For these reasons, this appeal will be dismissed with costs.
(Sgd.) "Karen R. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-360-01
STYLE OF CAUSE: Mark Lester Isaaks v. Her Majesty the Queen
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: June 23, 2003
REASONS FOR JUDGMENT: LÉTOURNEAU, SHARLOW, MALONE JJ.A.
RENDERED FROM THE BENCH BY: SHARLOW, J.A.
APPEARANCES:
Mr. Guy Dagneau FOR THE APPELLANT
Mr. Mark Lesters Isaaks
Mr. Carl Januszczak FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Guy Dagneau FOR THE APPELLANT
(Representative)
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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