Leger v. The Queen

Leger v. The Queen Court (s) Database Tax Court of Canada Judgments Date 2004-10-05 Neutral citation 2004 TCC 669 File numbers 2003-350(IT)I Judges and Taxing Officers Lucie Lamarre Subjects Income Tax Act Decision Content Docket: 2003-350(IT)I BETWEEN: ALAIN LEGER, Appellant, and HER MAJESTY THE QUEEN, Respondent. Appeals heard on March 12, 2004, at Ottawa, Ontario. Before: The Honourable Justice Lucie Lamarre Appearances: Counsel for the Appellant: John Clow, Q.C. Counsel for the Respondent: April Tate JUDGMENT The appeals from the assessments made under the Income Tax Act for the 1992, 1993, 1994, 1995 and 1997 taxation years are allowed and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the appellant is entitled to claim an additional business investment loss of $85,069 for 1994, pursuant to paragraph 39(1) of the Act, and to carry that loss back or forward to the other years at issue, pursuant to paragraph 111(1)(a) and subsection 111(8) of the Act, subject to the appellant having accepted limiting his allowable business investment loss claimed to a maximum of $24,000 per taxation year as required by section 18.13 of the Tax Court of Canada Act. Signed at Ottawa, Canada, this 5th day of October 2004. "Lucie Lamarre" Lamarre, J. Citation: 2004TCC669 Date: 20041005 Docket: 2003-350(IT)I BETWEEN: ALAIN LEGER, Appellant, and HER MAJESTY THE QUEEN, Respondent. REASONS FOR JUDGMENT Lamarre, J. [1] These are appeals under the informal procedure against assessments made by the Minister of National Revenue ("Minister") under the Income Tax Act ("Act") for the appellant's 1992, 1993, 1994, 1995 and 1997 taxation years. In computing his income for the 1994 taxation year, the appellant claimed a business investment loss of $262,678 under paragraph 39(1)(c) of the Act. In reassessing the appellant for that year, the Minister disallowed $69,879 of the total business investment loss claimed and likewise disallowed that part of the loss that was carried either back or forward to the 1992, 1993, 1995 and 1997 taxation years pursuant to paragraph 111(1)(a) and subsection 111(8) of the Act. The allowable business investment loss that was carried forward to 1995 and that was disallowed by the Minister amounts to $30,736. Counsel for the appellant indicated in Court that the appellant has elected, pursuant to section 18.13 of the Tax Court of Canada Act, to limit the appeal to a loss amount of $24,000 for that year, as he wished to have all his appeals heard under the informal procedure. [2] In reassessing the appellant, the Minister relied upon the following assumptions of fact that are found in paragraph 7 of the Reply to the Notice of Appeal ("Reply"): (a) the Appellant claimed a business investment loss of $69,879 (plus $192,799 allowed by the Minister) in respect to a debt owed by the Corporation [520205 Ontario Inc.] to him; (b) the Appellant was a shareholder of the Corporation; (c) the Corporation filed for bankruptcy on May 30, 1994; (d) the Corporation did not file any financial statements for the year ended February 28, 1994; (e) except the business loss allowed, the Corporation had no additional debt with the Appellant on February 28, 1993 or May 30, 1994; and (f) for the period of March 1, 1993 to May 30, 1994, no books or records were provided to the Minister to support the business investment loss. Issue [3] The issue as stated in paragraph 8 of the respondent's Reply is whether 520205 Ontario Inc. ("corporation") owed a debt to the appellant on May 30, 1994, the date of the corporation's bankruptcy. The respondent's sole argument in her Reply is that the appellant did not incur a business investment loss of $69,879 in his 1994 taxation year since there was no additional debt of that amount owed to the appellant by the corporation under paragraph 39(1)(c) of the Act either on February 28, 1993 (the corporation's year end) or on May 30, 1994 (date of the corporation's bankruptcy). The appellant claims not only that the corporation owed him a debt for money lent to it by him or paid by him on its behalf during the corporation's 1994 fiscal year, but also that the additional amount due that should be allowed as a business investment loss is not $69,879 but $85,069. [4] A schedule of the amounts now claimed was prepared by the appellant's accountant, Robert Ogle, a partner in the accounting firm Welch & Co., and filed as Exhibit A-1, which is reproduced below: ALAIN LEGER ALLOWABLE BUSINESS INVESTMENT LOSS Opening balance of shareholders account Feb. 28/93 $ 30,300 Advances to company: April/93 $ 5,000 April/93 35,000 April/93 15,000 May /93 15,000 June /93 15,000 85,000 Legal and financing costs 6,566 Expenses paid personally by Alain Leger 1,601 Funds paid personally re: net pays: June /93 7,483 Sept /93 8,265 Feb /94 5,398 21,146 Drawings (20,000) Clear out A/R (365) Correct wages (5,129) Withdrawals - 5 x 750 (3,750) Revised allowable business loss $115,369 [5] The business investment loss of $85,069 now claimed is the difference between the "Revised allowable business loss" of $115,369 and the "Opening balance of shareholders account Feb. 28/93", namely, $30,300, as per Exhibit A-1. Although the Minister has accepted the opening balance of the shareholder's account as at February 28, 1993 ($30,300), the respondent does not agree that the additional amounts added to that account in Exhibit A-1 constitute a debt owed by the corporation to the appellant. Facts [6] The corporation operated a family business wholesaling electrical and lighting products under the name of House of Lighting. In 1986, the appellant purchased 50 per cent of the shares of the corporation from his parents, the other 50 per cent being purchased by the appellant's brother Guy Leger. The total sales price was $250,000, of which the appellant paid half, that is, $125,000 (Exhibit A-2). [7] The corporation went bankrupt in May 1994 and, as a result, the appellant claimed a business investment loss for 1994, part of which was disallowed by the Canada Customs and Revenue Agency ("CCRA"). [8] Mr. Ogle testified that he prepared the schedule filed as Exhibit A-1, and referred to above, in 1999 when he was requested by the CCRA appeals officer, at the objection stage, to provide explanations concerning the business investment loss that had previously been disallowed. [9] Mr. Ogle said that Exhibit A-1 is based on documentation that he had seen, such as copies of the appellant's bank deposit book, of the appellant's cancelled cheques, and of documents regarding loans granted to the appellant after February 1993. He also mentioned that his firm prepared the corporation's financial statements for the year ending February 28, 1994, in August 1995 at the request of the trustee in bankruptcy (Exhibit A-13). In so doing, his firm relied on the corporation's ledger and on the preliminary internally generated balance sheet for the corporation's 1994 fiscal year that were prepared by the corporation's internal accountant at the time, Kevin Muldoon, who stopped working for the corporation after the bankruptcy. The financial statements were never filed in the end because the trustee in bankruptcy did not want Mr. Ogle to finalize them. Mr. Ogle therefore did not review them at that stage. As a result, the corporation's tax return for the 1994 fiscal year was not filed either. However, Mr. Ogle reviewed those financial statements at the objection stage. Although he could not verify the documentation supporting the statements, he nevertheless found them satisfactory enough as they were based on information recorded by Mr. Muldoon before the bankruptcy and later confirmed by the appellant. [10] Having said that, and the appellant having centered the issue on the figures set out in Exhibit A-1, I now intend to reproduce the facts as they were presented to me in respect of each item claimed by the appellant in Exhibit A-1. Advances to the company: $85,000 (Exhibit A-1) [11] The appellant testified that he advanced from his personal account to the corporation's account an initial amount of $5,000 in April 1993, and similarly, two subsequent amounts of $15,000 in May 1993 and June 1993. These sums are shown under the heading "Advances to company" in Exhibit A-1. The advances are evidenced by copies of deposit slips of the corporation. One of these, prepared by Kevin Muldoon, shows an amount of $5,000 received from the appellant on April 8, 1993 (Exhibit A-4, 1st page); two others indicate amounts of $15,000 for May 22, 1993 (Exhibit A-4, 3rd page) and for June 4, 1993 (Exhibit A-4, 4th page). These advances were made by cheques drawn on the appellant's account and made to the order of House of Lighting (see Exhibit A-5, 5th, 6th and 11th pages). [12] The other items appearing under the heading "Advances to company" in Exhibit A-1 are an amount of $35,000 and an amount of $15,000, totalling $50,000, which were advanced to the corporation in April 1993. The appellant explained that his brother Maurice Leger, who was not a partner and was not working for the corporation, agreed to lend him $50,000 from his two lines of credit. The appellant endorsed the cheques made to his order by his brother Maurice and deposited them in the corporation's account on April 20, 1993, as evidenced by a copy of a page from the corporation's deposit book and of a bank statement filed together as Exhibit A-15. There was no written loan agreement but there was a verbal understanding that the appellant would pay back shortly the principal and also the interest incurred by Maurice on his lines of credit. The appellant did indeed pay back the entire loan to his brother, with interest, over a period from July 28, 1993 to August 11, 1994. This is evidenced by the cheques made by the appellant to the order of Maurice Leger (see Exhibit A-5, 4th, 7th, 8th, 9th and 10th pages), and by the schedule of the interest incurred by Maurice Leger on the $50,000 borrowed on his line of credit, which shows the amounts of principal repaid by the appellant over the above-mentioned period and a final interest payment of $2,866.99 (Exhibit A-6). It is also confirmed by a document apparently prepared by the appellant's wife, Jill Leger, on the basis of the appellant's cheque books and deposit slips (Exhibit A-11, page 2). The loan transaction is confirmed as well by a letter of August 5, 1998, signed by Maurice Leger and addressed to Robert Ogle (Exhibit A-5, 2nd page). This letter also confirms the testimony of both Mr. Ogle and the appellant that the proceeds of the loan were "used in the House of Lighting". Legal and financing costs: $6,566 (Exhibit A-1) [13] With respect to this item, the appellant explained that it represented legal costs and interest expenses that were incurred by him personally in securing a mortgage from the trustees of the Gilles Aubé Family Trust ("Aubés") to provide additional funds to be invested in the corporation. As a matter of fact, on May 20, 1993, the appellant's wife, Jill Leger, obtained a $50,000 mortgage from the Aubés on a lot owned by her (Part of Lot 8, Registered Plan 271, in the township of Cornwall and designated as Parts 4 and 6, Reference Plan 52R-4483). The appellant acted as guarantor with respect to this charge (see Charge/Mortgage of Land, Exhibit A-5, last page). The charge was registered in the Abstract Index for Lot 8, Plan 271, township of Cornwall, on May 21, 1993 (Exhibit R-1). [14] The appellant explained that the loan could not be obtained from the Aubés without Canada Trust first issuing a partial discharge for the lot so as to make possible the severance of a parcel of land that would be used as security for the second mortgage to be held by the Aubés. Canada Trust requested as a condition of the partial discharge a paydown of $20,000 on its mortgage plus an administration fee of $150 (Exhibit A-7, 1st page). The appellant also had to pay in respect of the mortgage transaction legal fees of $1,531.32, less a credit of $87.55 for GST, to his lawyer (Exhibit A-7, 3rd page), a brokerage fee of $500 and legal fees in the amount of $1,134.74 to the law firm acting for Canada Trust (Exhibit A-7, 2nd page). The appellant explained that the net proceeds of the mortgage (after deduction of all the above expenses and the 1993 tax arrears amounting to $1,665.30) were deposited in the corporation's account. This seems to be evidenced by the corporation's ledger prepared by the internal accountant, which shows a credit of $22,483.29 and of $3,187.55 to the appellant's shareholder's advance account on June 30, 1993 (Exhibit A-12, 1st page). [15] The appellant said that his shareholder's advance account was increased by the amount of the loan and the cost thereof ($6,566) in the accounting records of the corporation. The cost of $6,566, which is the only amount now claimed in respect of that loan, is composed of the $150 discharge fee, the brokerage fee of $500, the legal fees ($1,531.32, less a credit of $87.55, and $1,134.74) and the interest paid on the Aubés' mortgage in 1993 as adjusted pursuant to the interest schedule shown on the last page of Exhibit A-7. [16] It should be noted that the Abstract Index (Exhibit R-1) indicates that the partial discharge was registered by Canada Trust only on June 30, 1993, although the Aubés' charge had been registered on May 21, 1993. Although this may look strange, there is a letter from Lending Administration at Canada Trust dated May 21, 1993, and addressed to the appellant's then lawyer. The letter indicates that it is Canada Trust's "understanding that the funds for the paydown of [the Canada Trust] mortgage will result from [the appellant] putting on a blanket mortgage (1st on part 6 and a 2nd on part 4 subordinate to [Canada Trust's] 1st mortgage" (Exhibit A-7, 1st page). The Aubés' mortgage was secured by the property consisting of Parts 4 and 6 on Reference Plan 52R-4483 referred to above, as shown in the Abstract Index (Exhibit R-1). [17] It is therefore my understanding that the discharge fee, the brokerage fee and the legal fees paid by the appellant and referred to under the heading "Legal and financing costs" in Exhibit A-1 were in fact paid to obtain the mortgage loan from the Aubés. Now it is the testimony of the appellant and his accountant, Mr. Ogle, that the net proceeds of this loan were invested in the corporation (as mentioned earlier, this seems to be reflected in the corporation's ledger filed as Exhibit A-12) with the intent of eventually earning income through the corporation's profits. They say the money was used to pay ongoing operating costs of the corporation. Expenses paid personally by Alain Leger: $1,601 (Exhibit A-1) [18] The appellant explained that these expenses were incurred by him personally to remove and bring back an electrical ceiling provided by House of Lighting to a customer. The corporation did not have the funds available to pay for this and the cost of it was applied to the appellant's shareholder's advance account. The appellant testified that the amount in question was never paid back to him. That amount is recorded in the corporation's ledger under "Due To Shareholder (A.L.)" (Exhibit A-12, 3rd page), but the appellant said he did not have any other record on this expense. Funds paid personally re: net pays $21,146 (Exhibit A-1) [19] The appellant explained that this item groups together the salaries due to him and his wife by the corporation that were redeposited in the corporation's account, without the cheques being cashed, in order to allow the corporation to pay ongoing expenses. A list of all the cheques that were made out to the appellant and his wife during the period from February 10, 1993, to December 30, 1993, which represent a total of $34,883 ($28,527 for the appellant and $6,356 for his wife), is found in Exhibit A-8. The list also shows the cheques that were redeposited and the amounts thereof, which total $21,147.63. This list was prepared by Mr. Ogle at the time he was having discussions with the CCRA's appeals officer at the objection stage. It differs slightly from the one prepared by Earle Loftman, the appeals officer, which includes all of the cheques issued in the period from January 1993 to December 1993 to the appellant and his wife, which amount to $39,113 (Exhibit R-8). Copies of some of the cheques listed there were filed as Exhibit A-9. Mr. Ogle explained that he saw all the cheques when he worked on the financial statements in 1995. He said that the cheques redeposited were credited to the appellant's shareholder's advance account (transcript of the proceedings, page 180). However, although the appellant's wife, Jill Leger, declared salary income in her 1993 tax return (Exhibit A-10), the appellant did not himself declare any salary income from the corporation in his 1993 tax return (Exhibit A-3). Mr. Ogle explained that the salary cheques were not declared by the appellant because he decided instead to reduce his shareholder's advance account by the amounts of the cheques issued to him. In other words, the cheques issued by the corporation were considered by him as a repayment of debt and not as salary (transcript of proceedings, page 187). So the cheques were issued and then applied to the reduction of his shareholder's advance account (transcript of proceedings, page 183). The amounts shown in the "Drawings" account by Mr. Muldoon when he entered the cheques prepared for the two shareholders in the accounting records were ultimately removed in respect of the appellant and applied against his shareholder's advance account, reducing it by $20,000 (see Exhibit A-1, "Drawings", and Exhibit A-12, 3rd page). The same was done with respect to three other items -- "Clear out A/R", "Correct wages" and "Withdrawals - 5 x 750" - shown in Exhibit A-1. The shareholder's advance account was reduced by the amounts appearing under those items. This was done prior to completing the financial statements for February 1994. [20] However, the monies reinvested by Jill Leger increased the appellant's shareholder's advance account because she paid tax on the salary cheques that were redeposited in the corporation's account. The appellant and Mr. Ogle explained that instead of her trying to cash her cheques and giving the money to her husband so that he could reinvest the money in the corporation, they found it easier and safer just to endorse Jill Leger's cheques back over to the corporation, as the bank may not have honoured the cheques had she attempted to cash them. [21] Earle Loftman, the appeals officer, and Sue Murray, the auditor, both of whom worked for the CCRA, testified that they disallowed the business investment loss at issue because they did not have in hand at the time the complete general ledger and the finalized financial statements of the corporation for its 1994 fiscal year. They both said that a review had to be done to verify the entries behind the numbers appearing on the financial statements. This is why they would have liked to have analyze the corporation's general ledger to verify the flow of funds in order to ascertain whether the monies invested by the appellant in the corporation were in fact owed by the corporation. Indeed, they saw excerpts only from the general ledger. They could see that the money was invested in the corporation by the appellant, but they could not verify the entries in the other accounts. They were of the opinion that there was a lack of documentation to support the claim of the appellant that there was a debt owed to him by the corporation. They could not verify what was done with the money by the corporation and whether it was repaid to the appellant. They said that the shareholder's advance account alone does not reflect all of the activity in a business that is related to the shareholder's transactions. They need to see what is recorded in other accounts of the general ledger that are germane to the shareholder's advance account. That is why they did not allow the loss; they had not seen the underlying documentation showing how all the transactions within the corporation had been recorded. Analysis [22] The appellant seeks to deduct from his income for the 1994 taxation year $85,069 above the amount the Minister allowed as a business investment loss. It is the respondent's position that the appellant has not met the burden of proving that he is entitled to that deduction. It should be remembered here that the only issue raised by the respondent in her Reply is whether the corporation was indebted to the appellant on May 30, 1994. As a matter of fact, it is clear from the Reply that the Minister did not rely on any other facts in reassessing the appellant, and the evidence adduced at trial did not go beyond the indebtedness issue. As a result, the appellant has the burden of showing on a balance of probabilities that, on the date of the bankruptcy, the corporation was indebted to him for the amount claimed. [23] In her written submissions, counsel for the respondent argues that the appellant failed to provide documentation substantiating his claim. She says that the appellant was required to keep records and books of account for the corporation. She also says that some of the supporting documents were prepared by people who were not in court to give evidence as to the veracity of those documents and as to how they were prepared. She further states that by failing to file an income tax return and financial statements for the corporation the appellant prevented the CCRA from conducting an audit to accurately assess the amount of the business investment loss. The respondent also questions the discrepancy between the amount ($69,879) originally claimed by the appellant in his 1994 income tax return and the new amount ($85,069). In her view, there is no plausible explanation for that discrepancy. Finally, the respondent is of the view that the appellant has not proven the existence of a link between the borrowed funds and the corporation or that the appellant loaned money to the corporation with the intention of creating indebtedness. [24] I agree with counsel for the appellant that the respondent's submissions are inaccurate when she says that the appellant prevented the CCRA from conducting an audit. The evidence revealed that the CCRA was in possession of quite a few documents at that stage. Although the finalized financial statements and the complete general ledger of the corporation were not provided to the auditor nor to the appeals officer, other documents were provided and these were analyzed by them. One should not forget that the corporation filed for bankruptcy in May 1994 and it is not surprising that some documents were not in the possession of the corporation's shareholder once a trustee in bankruptcy was appointed. Mr. Ogle testified that his firm was asked to prepare financial statements for the year ending February 28, 1994, and did so in August 1995. At the request of the trustee in bankruptcy, they were not finalized. Mr. Ogle subsequently reviewed the financial statements when a notice of objection to the assessments presently under appeal was filed. It is my understanding that he relied on the figures in those statements and on the corporation's ledger, which he had in hand at the time, in preparing Exhibit A-1 and when discussing the appellant's claim with the appeals officer. [25] I also agree with counsel for the appellant that the documentary evidence filed with the Court proves on a balance of probabilities that the appellant and the internal accountant treated the money invested in the corporation as a loan, as it was accounted for in the appellant's shareholder's advance account with the corporation before the bankruptcy in May 1994. The documentary evidence was filed without objection by the respondent. It is now too late to argue that the people who prepared those documents should have been in court to give evidence as to their veracity. I also agree with the appellant that the issue in the present case is a factual one: i.e. did the corporation owe the appellant an additional amount of $85,069 either on February 28, 1994 (the end of its fiscal period) or on May 30, 1994 (the date on which the corporation filed for bankruptcy). The fact that originally a lower amount was claimed should not prevent the appellant from claiming the actual loss sustained by him. I do not find that this fact is, as suggested by the respondent, significant enough to cast doubt on the appellant's and Mr. Ogle's credibility. [26] The various amounts claimed to have been lent or advanced by the appellant to the corporation are listed in Exhibit A-1, and the appellant testified that he was never reimbursed or repaid. [27] I am satisfied that the appellant has established on a balance of probabilities that he did in fact advance the amounts at issue to the corporation. Cancelled cheques, deposit slips, the corporation's deposit book, the shareholder's advance account ledger, the internal accountant's preliminary figures, the non-finalized financial statements, the letter from Maurice Leger, and all the other documents provided in evidence, combined with the testimony of the appellant and his accountant, Mr. Ogle, are satisfactory enough, in my view, to show that the appellant had the funds to make advances to the corporation, did in fact make such advances, and treated those advances as loans, loans which, in the end, were never repaid. [28] With respect to the legal and financing costs, the appellant produced both documentary and viva voce evidence to support the amounts thereof. I am also satisfied that the appellant paid these expenses on behalf of the corporation with the intent of being reimbursed when the corporation was back on its feet financially. The fact that the Aubés' mortgage was granted on the security of a lot of which the appellant's wife was the registered owner is not relevant in my view, as the appellant is claiming the expenses he himself paid to secure this mortgage on behalf of the corporation. With respect to the expenses paid personally by the appellant for the removal of the electrical ceiling belonging to the corporation, they were recorded by Mr. Muldoon in the appellant's shareholder's advance account. I am satisfied that these expenses were incurred by the appellant on behalf of the corporation and that he intended to be reimbursed by the corporation. [29] Finally, concerning the redeposited cheques, I am also satisfied that the accountant properly accounted for the amounts in question. The cheques issued to the appellant were taken into account to reduce the shareholder's advance account, as the amounts thereof were not included in his tax return. Indeed, a total of approximately $28,000 was used to reduce the shareholder's advance account, as shown in Exhibit A-1; this corresponds to the total amount of all the cheques issued to the appellant (Exhibit A-8). These amounts were treated as repayment of a debt. However, the cheques redeposited by Jill Leger increased the shareholder's advance account. Although Jill Leger was not a shareholder, it is my understanding, from the evidence, that she gave back her salary to her husband so that he could reinvest it in the corporation. I note that the respondent did not raise any issue with respect to this matter at trial. Furthermore, the evidence suggests that the appellant and his wife had joint accounts and commingled their funds. It is therefore reasonable to conclude that Jill Leger did in fact give her husband her cheques with the intention that he would loan the amounts thereof to the corporation. [30] On the whole of the evidence, I conclude that the appellant has shown on a balance of probabilities that the corporation owed him an additional amount of $85,069 on February 28, 1994, and on May 30, 1994. This was the sole issue raised in the proceedings. As for the other conditions required for a loss to qualify as a business investment loss pursuant to paragraph 39(1)(c) of the Act[1]-- i.e. the requirement that the debt have been acquired by the appellant for the purpose of gaining or producing income from a business or property (subparagraph 40(2)(g)(ii)), that the debt have become bad in the year 1994 (the year giving rise to a deemed disposition for the purposes of subsection 50(1) for proceeds equal to nil), and that the business investment loss have been sustained by the appellant -- the respondent in her pleadings did not challenge the fact that those conditions were met and she has not convinced me that they were not. For these reasons, I find that the appellant is entitled to claim an additional business investment loss of $85,069. [31] The appeals are therefore allowed and the assessments are referred back to the Minister for reconsideration and reassessment on the basis that the appellant is entitled to claim an additional business investment loss of $85,069 for 1994 and to carry that loss back or forward to the other years at issue pursuant to paragraph 111(1)(a) and subsection 111(8) of the Act, subject to the appellant having accepted limiting his allowable business investment loss claimed to a maximum of $24,000 per taxation year as required by section 18.13 of the Tax Court of Canada Act. Signed at Ottawa, Canada, this 5th day of October 2004. "Lucie Lamarre" Lamarre, J. CITATION: 2004TCC669 COURT FILE NO.: 2003-350(IT)I STYLE OF CAUSE: Alain Leger v. HMTQ PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: APPELLANT'S WRITTEN ARGUMENT: RESPONDENT'S WRITTEN SUBMISSIONS: APPELLANT'S WRITTEN REPLY: March 12, 2004 April 15, 2004 May 13, 2004 May 27, 2004 REASONS FOR JUDGMENT BY: The Honourable Justice Lucie Lamarre DATE OF JUDGMENT: October 5, 2004 APPEARANCES: Counsel for the Appellant: John Clow, Q.C. Counsel for the Respondent: April Tate COUNSEL OF RECORD: For the Appellant: Name: John Clow, Q.C. For the Respondent: Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada [1] See Wierbicki v. Canada, [1996] T.C.J. No. 1303 (Q.L.).