Buzaglo v. Canada

Buzaglo v. Canada
Court (s) Database
Federal Court of Appeal Decisions
Date
2004-01-14
Neutral citation
2004 FCA 14
File numbers
A-84-03
Decision Content
Date: 20040115
Docket: A-84-03
Citation: 2004 FCA 14
CORAM: STONE J.A.
SEXTON J.A.
MALONE J.A.
BETWEEN:
JACK BUZAGLO
Applicant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Toronto, Ontario, on January 14th, 2004.
Judgment delivered from the Bench at Toronto, Ontario, on January 14th, 2004.
REASONS FOR JUDGMENT OF THE COURT BY: MALONE J.A.
Date: 20040115
Docket: A-84-03
Citation: 2004 FCA 14
CORAM: STONE J.A.
SEXTON J.A.
MALONE J.A.
BETWEEN:
JACK BUZAGLO
Applicant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario, in January 14, 2004)
MALONE J.A.
[1] This application for judicial review concerns a judgment of Tax Court Judge Gordon Teskey (the Judge) dated February 27, 2003 which confirmed the Minister of National Revenue's decision to disallow certain alleged charitable donations totalling $8000.00 purportedly made by Mr. Buzaglo in the 1993 taxation year (reported as 2003 D.T.C. 1373). The Judge made his decision on the basis that the applicant did not make the donations as indicated in the receipts submitted with his 1993 income tax return.
[2] The applicant alleges that the facts in this case are essentially the same as those in the case of Benitah v. Canada [2003] C.T.C. 2567 where the applicant was successful before a different Tax Court Judge. That decision should therefore be binding on Judge Teskey according to Mr. Buzaglo. Mr. Buzaglo also argues that the Judge in the present application made findings of facts not supported by the evidence which gives rise to palpable and overriding errors so as to warrant the intervention of this Court. We disagree.
[3] First of all, the decision in Benitah, supra cannot be treated as a precedent for the present case. Section 18.28 of the Tax Court of Canada Act, R.S.C., 1985, c. T-2 provides that:
A judgment on an appeal referred to in section 18 shall not be treated as a precedent for any other case.
Section 18 refers to a taxpayer's appeal under the informal procedure which is the case here.
[4] Further, while as a general rule Courts normally follow their own prior decisions, except in exceptional circumstances, that principle does not apply where cases can be distinguished on their facts. (See Eli Lilly and Co. v. Novopharm Ltd, 197 N.R. 291 (F.C.A.) and Miller v. Canada (A.G.) et al. (2002) 220 D.L.R. (4th) 149 (F.C.A.) ).
[5] In the Benitah appeal, the Crown called the taxpayer as a witness thereby inflicting serious damage to her own case. Here the Crown did not call Mr. Buzaglo as her witness but relied on the oral evidence of Rabbi Edery and an investigator with the Canada Customs and Revenue Agency. Their evidence was not challenged. The applicant then gave evidence on his own behalf. The Judge reviewed all of the evidence including the receipts which were entered as exhibits and concluded that Mr. Buzaglo was aware of the scheme and participated in it willingly. He wrote:
I unfortunately cannot accept the Appellant's testimony that he would draw a cheque from his company to himself, go and get cash, and then give cash and then get a receipt for cash some two, three, four weeks later, and at the end of the year $1000 cash, because we have two receipts dated the same day.
So I am driven to the conclusion that the Appellant knew that the scheme was a scam, that he was giving $50 cash for each and every receipt and getting a receipt for $ 500. Having come to that conclusion, I have no alternative but to dismiss the appeal.
[6] That conclusion was open to the Judge based on this record and his findings of credibility. In our analysis no palpable and overriding errors were made in reaching such a conclusion.
[7] The applicant also referred to a different version of testimony given by Rabbi Edery in the case of Cohen v. R. [2003] 3 C.T.C. 2157 touching on this same charitable donation scheme. This is said to be fresh evidence that suggests that in fact there were some legitimate donations made whereas in the present case Rabbi Edery gave evidence to the contrary. This inconsistency is said to support an order for a new trial. However, it is trite to say that evidence given in another case is of no assistance in this present application for judicial review.
[8] We would therefore dismiss this application with costs.
"B. Malone"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-84-03
STYLE OF CAUSE: JACK BUZAGLO
Appellant
and
HER MAJESTY THE QUEEN
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 14, 2004
REASONS FOR JUDGMENT
OF THE COURT BY: (STONE, SEXTON AND MALONE J.J.A.)
DELIVERED FROM THE
BENCH BY: MALONE J.A.
APPEARANCES:
Mr. Moses Muyal FOR THE APPELLANT
Ms. Patricia Lee
Mr. Michael Appavoo FOR THE RESPONDENT
SOLICITORS OF RECORD:
Steinberg Morton Frymer LP,
Toronto, Ontario FOR THE APPELLANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT