O’Connor
T.CJ.:
It
was
agreed
by
counsel
for
both
parties
that
the
decision
in
the
Income
Tax
appeal
would
apply
also
to
the
Canada
Pension
Plan
and
Unemployment
Insurance
appeals.
The
issue
is
whether
the
Appellant,
a
Saskatchewan
lawyer,
because
of
subsections
159(2)
and
(3)
of
the
Income
Tax
Act
and
the
fact
that
the
Appellant
did
not
obtain
the
certificate
prescribed,
is
liable
for
unpaid
source
deductions
owed
by
a
company
because
proceeds
of
an
auction,
allegedly
including
assets
of
that
company
and
of
other
companies
in
the
Auto-Tran
Group,
came
into
the
Appellant’s
possession
and
were
paid
out
by
the
Appellant
on
the
instructions
of
the
Appellant’s
client,
the
auctioneer,
to
a
creditor
holding
security
on
those
assets.
The
issue
boils
down
to
whether
the
Appellant,
in
the
facts
of
this
case,
was
an
assignee
receiver,
receiver-manager,
administrator,
executor
or
any
other
like
person.
The
Appellant’s
client
was
the
auctioneer
and
the
Appellant
carried
out
the
client’s
instructions
in
making
the
payment.
There
no
doubt
will
be
cases
where
a
lawyer
might
be
an
administrator
in
a
broad
sense
or
“any
other
like
person”
as
referred
to
in
the
above
subsections.
In
my
opinion,
however,
the
evidence
in
this
case,
coupled
with
the
credibility
of
the
Appellant
leads
overwhelmingly
to
the
opposite
conclusion.
To
demand
of
a
lawyer
holding
trust
funds
in
the
circumstances
of
this
appeal
to
attempt
to
track
down
every
entity
in
the
Auto-Tran
Group
and
verify
whether
any
had
a
liability
contemplated
in
the
subsection
in
question
is
to
impose
an
obligation
too
onerous
as
to
be
reasonable.
The
Appellant’s
testimony
is
to
the
effect
he
had
no
knowledge
that
the
company
in
default
was
part
of
the
Group.
The
only
document
involving
companies
in
the
group,
Exhibit
A-1,
Tab
6,
does
not
include
that
company
In
conclusion,
in
the
circumstances
of
this
case
the
Appellant
was
not
a
person
contemplated
in
subsection
159(2)
and
(3).
Consequently,
the
appeal
is
allowed
with
costs
in
the
amount
agreed
upon
by
counsel
for
both
parties.
Appeal
allowed.
Email this Content