Demarchi v. Canada
The appeal is dismissed because the incomplete appeal book breached this Court's orders and was fatal to the appeal; alternatively, the Tax Court judge's findings that the claimed expenses were not lawfully deductible and his credibility findings were not palpably or overridingly erroneous, and the late allegation...
Source-derived case information.
- Citation
- 2010 FCA 71
- Parties
- Appellant: George Alberto Demarchi; Respondent: Her Majesty the Queen
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 9 March 2010
- Procedural Posture
- Appeal From Tax Court of Canada (income Tax Reassessments) / Appeal to Federal Court of Appeal Judgment on Appeal
- Outcome
- Appeal dismissed with costs.
- Legal Topics
- Deductibility of Business and Employment Expenses, Reassessment Under Income Tax Act, Standard of Review on Credibility Findings, Procedural Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Alberto Demarchi
Appellant
Her Majesty the Queen
Respondent
Procedural Posture
Appeal From Tax Court of Canada (income Tax Reassessments) / Appeal to Federal Court of Appeal Judgment on Appeal
Legal Issues
- 1 Whether the appellant lawfully claimed and proved business and employment expenses deductible under the Income Tax Act
- 2 Whether the appellant complied with court orders concerning the composition and completeness of the appeal book
- 3 Whether the judge committed a palpable and overriding error in findings of fact and credibility
Ratio Decidendi
The appeal is dismissed because the incomplete appeal book breached this Court's orders and was fatal to the appeal; alternatively, the Tax Court judge's findings that the claimed expenses were not lawfully deductible and his credibility findings were not palpably or overridingly erroneous, and the late allegation of unfairness fails because the appellant had a full opportunity to present evidence.
Court Disposition
Appeal dismissed with costs.
Orders
- Appeal dismissed with costs.
Full Case Text
Judgment text and source record
1 paragraphs
Demarchi v. Canada Court (s) Database Federal Court of Appeal Decisions Date 2010-03-09 Neutral citation 2010 FCA 71 File numbers A-552-07 Decision Content Federal Court of Appeal CANADA Cour d'appel fédérale Date: 20100309 Docket: A-552-07 Citation: 2010 FCA 71 CORAM: NOËL J.A. LAYDEN-STEVENSON J.A. STRATAS J.A. BETWEEN: GEORGE ALBERTO DEMARCHI Appellant and HER MAJESTY THE QUEEN Respondent Heard at Toronto, Ontario, on March 9, 2010. Judgment delivered from the Bench at Toronto, Ontario, on March 9, 2010. REASONS FOR JUDGMENT OF THE COURT BY: LAYDEN-STEVENSON J.A. Federal Court of Appeal CANADA Cour d'appel fédérale Date: 20100309 Docket: A-552-07 Citation: 2010 FCA 71 CORAM: NOËL J.A. LAYDEN-STEVENSON J.A. STRATAS J.A. BETWEEN: GEORGE ALBERTO DEMARCHI Appellant and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario, on March 9, 2010) LAYDEN-STEVENSON J.A. [1] This appeal is from the judgment of Justice McArthur of the Tax Court of Canada (the judge) dismissing the appellant’s appeal from reassessments of the Minister of National Revenue (the Minister) under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (the Act) for the 1999 and 2000 taxation years. The Minister disallowed the business expenses and reduced the employment expenses claimed by the appellant. [2] The respondent (the Crown), as a preliminary issue, submits that the appellant has failed to comply with the orders of Justices Létourneau and Sharlow of this Court with respect to the composition and completeness of the appeal book. The orders are dated April 8, 2008 and February 10, 2009 respectively. The Crown requests that the appeal be dismissed on that basis. While we are of the view that the deficiency in the record, which is incomplete, is fatal to the appeal, we will comment, nonetheless, on the merits. [3] The appellant’s argument turns on the judge’s findings of fact and credibility. To succeed, he must demonstrate palpable and overriding error on the judge’s part. Our review of the record leads us to conclude that the judge did not err in concluding as he did. The judge was not satisfied that the claimed expenses could be lawfully claimed or deducted under the Act. We can see no reason to interfere with that finding. [4] The appellant’s allegation of unfairness was raised for the first time during oral argument. The appellant was provided a full opportunity to present evidence, cross-examine witnesses and make submissions before the judge. Consequently, he cannot succeed on this new ground. [5] The appeal will be dismissed with costs. “Carolyn Layden-Stevenson” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-552-07 (AN APPEAL FROM THE TAX COURT OF CANADA, FROM THE REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE C. H. MCARTHUR, DATED NOVEMBER 13, 2007, IN TAX COURT FILE NO.: 2004-3538(IT)G) STYLE OF CAUSE: GEORGE ALBERTO DEMARCHI. v. HER MAJESTY THE QUEEN PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: MARCH 9, 2010 REASONS FOR JUDGMENT OF THE COURT BY: (NOËL, LAYDEN-STEVENSON & STRATAS JJ.A.) DELIVERED FROM THE BENCH BY: LAYDEN-STEVENSON J.A. APPEARANCES: George DeMarchi FOR THE APPELLANT (SELF-REPRESENTED) Bobby Sood FOR THE RESPONDENT SOLICITORS OF RECORD: N/A FOR THE APPELLANT (SELF-REPRESENTED) John H. Sims, Q.C. Deputy Attorney General of Canada FOR THE RESPONDENT