[1] This is an appeal from a decision of McArthur J. of the Tax Court of Canada rendered pursuant to the informal procedure allowing the appellant's appeal in part with respect to her 1997 taxation year and dismissing it with respect to her 1998 taxation year.

[2] In her income tax returns for those two years, the appellant claimed business expenses in the amount of $94,153.09 and $122,656.69. The assessments in issue before the Tax Court had the effect of reducing these expenses to $55,219.72 for 1997 and $56,870.97 for 1998.

[3] The hearing of the appeal was restricted to the 1997 year. The appellant through her husband indicated in open court that 1998 had essentially been agreed to.

[4] At the conclusion of the hearing the Tax Court Judge indicated that the appeal for the 1997 taxation year would be allowed in part. After inquiring about 1998, the Judge was advised by counsel that the appeal would be withdrawn. The appellant, again through her husband, confirmed the withdrawal.

[5] As a result, an order was issued by the Tax Court Judge allowing the appeal for 1997, and referring the matter back to the Minister for reassessment on the basis that the appellant was entitled to a further deduction of $30,000.00 for that year.

[6] With respect to the 1998 appeal, the Tax Court Judge noted in his reasons:

Whereas during the hearing, counsel for the Respondent informed the Court that the Appellant was withdrawing her appeal for the 1998 taxation year;

The Appeal from the reassessment of tax made under the Income Tax Act for the 1998 taxation year is dismissed.

[7] The appellant now says that the withdrawal of her appeal for 1998 was based on the representation by counsel that the Minister would assess that year the same way as 1997. She submits that absent this representation, she would not have agreed to the withdrawal.

[8] It can be seen that the appellant is not taking issue with the Judgment of the Tax Court. What she challenges is the agreement to withdraw which she says was extracted from her by misrepresentation.

[9] The respondent denies having made any representation of the type alleged by the appellant. In particular, counsel has said under oath:

I categorically deny any such conversation with the Appellant and her husband. I never advised Mr. or Mrs. Bolton that CCRA would have to consider and apply Justice McArthur's findings with respect to 1997 to the 1998 taxation year.

Affidavit of ERIC SHERBERT, Appeal Book, p. 2, paragraph 7.

[10] Aside from the assertion by the appellant and her husband that this affirmation is false and that the agreement was obtained as a result of counsel's misrepresentation, there is no evidence which would support such a finding. The burden upon the appellant is a high one which cannot be met by mere allegations.

[11] The appellant, being self-represented, was not in a position to appreciate the extent of the burden which she had to meet. However, there is nothing which this Court can do about this. The onus of establishing misrepresentation has simply not been met.

[12] I would dismiss the appeal with costs.

"Marc Noël"

"I agree J.A.

A.M. Linden J.A."

"I agree

Marshall Rothstein J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-497-03

STYLE OF CAUSE: TAMARA BOLTON

Appellant

and

HER MAJESTY THE QUEEN

Respondent

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: NOVEMBER 3, 2004

REASONS FOR JUDGMENT BY: NOËL J.A.

CONCURRED IN BY: LINDEN J.A.

ROTHSTEIN J.A.

DATED: NOVEMBER 4, 2004

APPEARANCES:

Ms. Tamara Bolton FOR THE APPELLANT (on her own behalf)

Ms. Carol Shirtliff-Hinds FOR THE RESPONDENT

SOLICITORS OF RECORD:

Ms. Tamara Bolton

Newmarket, Ontario FOR THE APPELLANT (on her own behalf)

Morris Rosenberg

The Deputy Attorney General of Canada

Toronto, Ontario FOR THE RESPONDENT

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Bolton v. Canada, 2004 FCA 374

Citations2004 FCA 374

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2004 FCA 374