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Docket: 2003-4156(IT)I |
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BETWEEN: |
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BRIAN MacISAAC, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
____________________________________________________________________
Appeal heard on common evidence with the appeal of Brian MacIsaac (2003-4157(GST)I) on July 9 and August 26, 2004 at Halifax, Nova Scotia
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Before: The Honourable Justice Diane Campbell |
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Appearances: |
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Counsel for the Appellant: |
R. Daniel Harasemchuk |
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Counsel for the Respondent: |
Martin Hickey |
____________________________________________________________________
AMENDED JUDGMENT
The appeal from the assessment made under the IncomeTax Act with respect to a Notice of Assessment Number 15209 dated July 9, 2002 is allowed, with costs, and the assessment is vacated, in accordance with the attached Reasons for Judgment.
This Judgment is issued in substitution for the Judgment dated September 29, 2004.
Signed at Ottawa, Canada, this 8th day of November 2004.
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"Diane Campbell" |
Campbell J.
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Docket: 2003-4157(GST)I |
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BETWEEN: |
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BRIAN MacISAAC, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
____________________________________________________________________
Appeal heard on common evidence with the appeal of Brian MacIsaac (2003-4156(IT)I) on July 9 and August 26, 2004 at Halifax, Nova Scotia
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Before: The Honourable Justice Diane Campbell |
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Appearances: |
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Counsel for the Appellant: |
R. Daniel Harasemchuk |
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Counsel for the Respondent: |
Martin Hickey |
____________________________________________________________________
AMENDED JUDGMENT
The appeal from the assessment made under the Excise Tax Act with respect to a Notice of Assessment Third Party Number 2002-0013 dated April 19, 2002 is allowed, with costs, and the assessment is vacated, in accordance with the attached Reasons for Judgment.
This Judgment is issued in substitution for the Judgment dated September 29, 2004.
Signed at Ottawa, Canada, this 8th day of November 2004.
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"Diane Campbell" |
Campbell J.
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Citation: 2004TCC618 |
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Date: 20040929 |
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Dockets: 2003-4156(IT)I 2003-4157(GST)I |
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BETWEEN: |
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BRIAN MacISAAC, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
REASONS FOR JUDGMENT
Campbell J.
Introduction:
[1] The Appellant was assessed pursuant to section 227.1 of the Income Tax Act for the failure of Sylvan Valley Construction Limited ("Sylvan") to remit federal income tax withheld from employees' salaries for the 1998 taxation year, together with interest and penalties, as required by section 153 of that Act. The Appellant was also assessed pursuant to subsection 323(1) of the Excise Tax Act for failure of Sylvan to remit net tax owing in respect to the GST/HST reporting periods ending April 30, 1996, April 30, 1997 and April 30, 1998, together with interest and penalties, as required by subsection 228(2) of that Act. The assessments are against the Appellant as the sole director and officer of Sylvan.
[2] The appeals were heard together on common evidence.
[3] The Appellant counsel called five witnesses: Bill Meehan, the solicitor who incorporated Sylvan; Ron MacGillivray, the bookkeeper for Sylvan; Alan MacIsaac, the Appellant's father, Greig Campbell, CCRA collections' officer and the Appellant himself. There were no witnesses called by the Respondent.
The Evidence of Bill Meehan:
[4] Mr. Meehan, a solicitor for 36 years in Antigonish, Nova Scotia, incorporated Sylvan in December 1994 on instructions received from Alan MacIsaac. His testimony was clear that the Appellant did not retain him to do this incorporation. He sought direction from Alan MacIsaac on the corporate set-up respecting officers, directors, shareholders and banking.
[5] Meehan set up Sylvan with himself as a provisional director. After the incorporation in December 1994, it took several months before Alan MacIsaac provided him with the final instructions on the corporate set-up and the ultimate transfer of directorship to the Appellant. He was not sure he ever spoke to the Appellant about Sylvan or anything else. He recalled that he became aware that the Appellant would be returning to Antigonish from university in Newfoundland for the Christmas holidays in 1994 and he hoped to finalize the incorporation at that time. As nothing happened, he pursued the matter with Alan MacIsaac into the spring of 1995 at which time he was told to list the Appellant as director and officer of Sylvan. He forwarded a final reporting letter to Sylvan, to the attention of Brian MacIsaac in April 1995, but the address was not the Appellant's address. He stated he did nothing further for the company except for a quasi-criminal matter under the Occupational Safety Standards Act. Alan MacIsaac was charged along with the company. He stated that he filed a defence for both at the request of Alan MacIsaac and that "the company sort of rode on that". In June 2002, when the Appellant requested a copy of the minute book for Sylvan, Mr. Meehan testified that he wrote to Alan MacIsaac requesting his permission to release the book to the Appellant.
The Evidence of Ron MacGillivray:
[6] Mr. MacGillivray, a self-employed bookkeeper, testified that he had been completing Alan MacIsaac's returns and doing business with him since 1971. In late 1994 Alan MacIsaac informed him that he was incorporating a company to bid on some jobs. This company was to replace his former company, Silverwood Construction, which was not doing well. He was aware of who the Appellant was as he recalled seeing him at the rink and at Alan MacIsaac's residence. He knew the Appellant was in his early twenties and attending university at the time Sylvan was incorporated.
[7] He testified that Alan MacIsaac hired him to complete weekly payroll, prepare monthly remittances respecting employee deductions and file HST reports and corporate returns on behalf of Sylvan. It was Alan MacIsaac that provided all of the information required to complete the above returns and remittances. Mr. MacGillivray was aware when insufficient amounts were remitted and also in some instances when no remittances were made at all because there were no available funds. During his testimony he reviewed several subcontractors' applications for payment, which he prepared monthly based on actual work-amount totals billed and provided to him by Alan MacIsaac. These forms were signed by the Appellant after Mr. MacGillivray completed them. He stated that he requested the Appellant to sign the forms so that Sylvan could get paid. He thought the Appellant was signing these documents because he was President of Sylvan. He did not know the Appellant was a director. On occasion the Appellant did ask him how things were going and he advised the Appellant that Sylvan was busy and that everything was fine. These conversations lasted 30 to 45 seconds. However he never explained to the Appellant that there were outstanding accounts payable for source deductions and HST arrears. He testified that his instructions were received from Alan MacIsaac, and that it was Alan 's company. Although the Appellant signed the corporate documents relating to HST remittances and payroll deductions, he never asked about the status of these accounts. Mr. McGillivray, on cross-examination, stated that he never informed the Appellant that Sylvan was falling behind in tax remittances but that he did discuss it with Alan MacIsaac.
The Evidence of Alan MacIsaac:
[8] Alan is the father of the Appellant. Alan has been in the construction industry since 1960, most of the time being self-employed. The Appellant is one of eight children. Alan stated that he had two corporations - Silverwood Construction and Sylvan. He testified that when Silverwood got into financial problems and its equipment had to be sold, he decided to incorporate Sylvan in late 1994. Alan, his wife and daughter, Allana, were the directors of Silverwood. He stated that he gave Bill Meehan instructions to incorporate Sylvan and that he paid him to do it. He testified that he gave Meehan instructions to list his son, Brian, as the director of Sylvan but did not recall just how it came about. He wanted Brian to help with Sylvan until Silverwood's affairs were concluded at which time things could be switched. His conversations with Brian concerning this matter were brief. He did recall that he, his wife and daughter were assessed for director's liability in respect to his other company, Silverwood. He never disclosed or discussed these assessments with his son.
[9] He stated that his son worked for Silverwood for three summers while in high school doing "just every dirty, old job that came along". He never discussed the financial aspects of Silverwood with his son or any other family member.
[10] All of the equipment leases for Sylvan were executed by Alan MacIsaac. He also indicated that he executed contracts on behalf of Sylvan. For example he testified that he signed a contract for $467,000.00 with Walter and SCI Corporation. He stated that Brian knew he was going to do this job but that he did not discuss Sylvan's work with Brian nor did he specifically discuss this contract for $467,000.00 or any other with his son.
[11] He reviewed how he and Ron MacGillivray arrived at the employee deductions and employee salaries. He stated that it was his responsibility to make the decision of how much money to remit to Revenue Canada when there were insufficient funds. However, he never advised Brian that Sylvan was behind in payroll deductions and HST remittances. Although he testified he could have signed the documents that Brian signed at MacGillivray's office, he simply did not. He testified that other documentation prepared by MacGillivray on Sylvan letterhead respecting workmanship guarantees were signed by himself and not his son because he ran Sylvan.
[12] On cross-examination he stated that he did not advise his son that Silverwood was experiencing financial difficulties, and that if his son knew about it, it was not because he had made his son aware of the problems. In fact he stated he never discussed Silverwood's financial problems with anyone. He simply told Brian that he did not wish to be associated with Sylvan until he had Silverwood's affairs finalized, at which time he would switch Sylvan from Brian's name to his own. Sylvan never paid any money to Brian in respect to wages, director's fees or profit, although Alan MacIsaac took a salary.
The Evidence of Greig Campbell:
[13] The primary reason for calling this witness was to introduce a number of documents into evidence. These documents included the payroll collection diary, the GST collection diary, GST registration forms, third party authorization form, and several memos of Margaret Buckley relating to sections 227.1 and 323.
[14] Mr. Campbell testified that he travelled to Antigonish in April 1998 with several files, including the files of Sylvan and Silverwood, plus files respecting a numbered company, Alan MacIsaac Construction. All three companies listed the same mailing address. His only contact with the Appellant was a brief telephone conversation during this trip. He called the Appellant at his place of work, the Department of Social Services, and advised him that as director of Sylvan he would be responsible for monies owing. He stated that the Appellant advised him his father ran Sylvan and he would have his father contact Mr. Campbell. There were no other contacts between the Appellant and this witness.
The Evidence of Brian MacIsaac, the Appellant:
[15] The Appellant reviewed his academic and employment background. For a number of years he was a case worker with Social Services and is now a school teacher. His only involvement with his father's construction business was doing odd jobs as a summer student. He started his university years in business but did not do well and switched courses. His degrees are in history, sociology and physical education. His community activities had very little if any direct involvement with finances, fundraising or bookkeeping.
[16] The Appellant testified that as one of eight children, he was raised by a father who controlled the household. His mother had no control over monetary matters. His father never discussed his business operations or his financial difficulties with his family members. When Silverwood began experiencing financial problems, Alan MacIsaac never discussed this with the Appellant except to say there was no more work and therefore no need to keep the equipment.
[17] When the Appellant's father asked him to help start up another company (Sylvan), he told the Appellant it would assist his father in bidding on new jobs while Silverwood was winding down. The Appellant testified that he trusted his father and felt he was helping him out.
[18] The Appellant knew Ron MacGillivray, because he had him complete his personal tax returns. He also knew Mr. MacGillivray's children. When he agreed to assist with Sylvan, he testified that he was told that MacGillivray and his father would operate the business. His father requested the Appellant to open an account at the local Credit Union. After this, his father controlled the corporate chequebook and retained it in his possession. The Appellant would receive a visit at his workplace from his father to have cheques signed or he would receive a telephone call at work to attend at MacGillivray's office to execute documentation. He stated that the signatures on the GST registration form (Exhibit A-4) and the third party authorization form (Exhibit A-5) were not his but that he did execute other documentation at MacGillivray's office which included the subcontractors' application for payment. He never read the documents but stated that MacGillivray explained that the documents had to be signed so that Sylvan would get paid for work completed.
[19] The subcontractors' certificate, which he agreed he executed on behalf of Sylvan, at MacGillivray's office, contained a paragraph stating that any taxes owed by Sylvan were current. The Appellant, on cross-examination, stated that he never specifically inquired whether taxes were actually paid as both his father and MacGillivray assured him that things were going well and everything was up to date.
[20] Prior to his telephone call from Greig Campbell in April 1998, he testified that neither his father nor Ron MacGillivray ever indicated to him that Sylvan was experiencing remittance problems with Revenue Canada. After the call from Mr. Campbell, he went to his father and asked him to deal with this matter. His father told him he would deal with the problem when a job he was working on was completed.
Issue:
[21] Whether the Appellant is liable under section 227.1 of the Income Tax Act for Sylvan's failure to remit federal income tax in respect to employee salaries and whether the Appellant is also liable pursuant to the corresponding subsection 323(1) of the Excise Tax Act for Sylvan's failure to remit federal net tax for three reporting periods. The amounts were also assessed for interest and penalties.
Analysis:
[22] A director of a corporation is not liable for the corporation's failure under subsection 323(3) of the Excise Tax Act where that director
... exercised the degree of care, diligence and skill to prevent the failure that a reasonably prudent person would have exercised in comparable circumstances.
This creates the possibility of a due diligence defence for a director.
[23] For all practical purposes the wording in subsection 323(3) is the same as the corresponding subsection 227.1(3) of the Income Tax Act.
[24] Both sections enable a director to hold himself harmless from liability in certain circumstances. Therefore I must determine whether the Appellant acted with the degree of care, diligence and skill required pursuant to both subsections to prevent the non-payment of net tax for three GST/HST reporting periods and to prevent the non-payment of tax withheld from employee's salaries for the 1998 taxation year. Each case must be decided on its facts.
[25] I believe the approach taken by Associate Chief Justice Bowman in Cloutier et al. v. M.N.R., 93 DTC 544 is the favoured approach. At pages 545 and 546 of his judgment, he states:
The question therefore becomes one of fact and the court must to the extent possible attempt to determine what a reasonably prudent person ought to have done and could have done at the time in comparable circumstances. Attempts by courts to conjure up the hypothetical reasonable person have not always been an unqualified success. Tests have been developed, refined and repeated in order to give the process the appearance of rationality and objectivity but ultimately the judge deciding the matter must apply his own concepts of common sense and fairness. [See Note 1 below] It is easy to be wise in retrospect and the court must endeavour to avoid asking the question "What would I have done, knowing what I know now?" It is not that sort of ex post facto judgement that is required here. Many judgement calls that turn out in retrospect to have been wrong would not have been made if the person making them had the benefit of hindsight at the time.
[26] I have no difficulty in finding as a fact that there was nothing that the Appellant could have done to prevent Sylvan's non-payment of money owing to the Government of Canada. The facts would indicate that Alan was the patriarchal head of the family unit. Alan did not discuss his finances with anyone, including his wife. He maintained a tight rein over the family's finances. Both Alan and Brian confirmed that Brian was the child that was closest to his father. Brian was 25 years old when his father asked him to help get another company (Sylvan) started. Brian was a couple of years out of university working as a caseworker for Social Services. His educational background was in the arts and physical education. He had no business expertise. In fact he realized his strengths were not in the business area after attempting and then failing a business course at university.
[27] The actual term "director" was never mentioned when Alan asked his son to assist him in setting up Sylvan. In fact I believe the evidence supports my conclusion that neither Brian nor his father had really any idea that Brian was being asked to be a director, although I do believe that Alan knew the financial ramifications of having Brian assist him with Sylvan. Brian agreed to assist his father because his siblings were either in high school or college and most importantly as Brian stated he trusted his father and had no reason not to. However the evidence is that Brian was unaware that his father's other company Silverwood was bankrupt, that large sums of money were owed to Revenue Canada, and that Alan, his wife and Brian's older sister, Allana, had all been assessed for director's liability. In fact it is very telling that during the hearing it came to light that Alan MacIsaac also had a numbered company, Alan MacIsaac Construction, that no one, including Brian's counsel, seemed to be aware of. This third company also owed huge amounts of money to Revenue Canada. None of this information, including the existence of a third company, was disclosed to Brian by his father or any other family member. He was aware that his father was selling off Silverwood's equipment but he believed that it was to pay the corporate loans because of a slow market. He was never told that in actual fact Silverwood was wading through a sea of debt with remittances unpaid.
[28] Sylvan was incorporated by Bill Meehan pursuant to instructions received from Alan. This is supported by the evidence of both Alan and Mr. Meehan. Meehan received no instructions of any kind from Brian and in fact Brian never met with Meehan or attended at his office to execute any corporate documentation. Meehan testified that his usual practise was to incorporate a company naming himself as a provisional director and then after incorporation transfer the company to the appropriate individuals. It was Alan who directed Meehan to appoint Brian as a director. There were no conversations, by telephone or otherwise, between Brian and Meehan, no correspondence to Brian and just simply no direct contact between Meehan and Brian.
[29] It was Alan who gave instructions to MacGillivray, the bookkeeper. Again there was a certain degree of trust on Brian's part as MacGillivray had completed Brian's personal returns in the past and Brian was aware that MacGillivray had also done work for his father. MacGillivray testified that Alan hired him to prepare weekly payroll and monthly remittances. In addition MacGillivray listed himself as the contact person for Revenue Canada on the GST registration form and the third part authorization. When asked however about GST remittances, MacGillivray stated he did nothing. Sylvan required a GST number so it could bid on jobs where such a number was required. MacGillivray then did nothing in respect to GST remittances except to bring it up with Alan. He had first hand knowledge and by his own admission was fully aware that Sylvan was not remitting the tax and that it was behind with the employee source deductions. Although both he and Alan knew fully that Sylvan had remittance issues, a number of corporate documents, including the request for payment forms respecting jobs completed, were placed before Brian for execution with certifications that Sylvan was in compliance and current with its tax remittances. However Brian was never told that these certifications were incorrect. He was intentionally kept in the dark. In fact when asked by Brian on a couple of occasions how things were going, MacGillivray's amazing response was - "I told him things were fine". Yet MacGillivray knew full well that some remittances were either insufficient or had not been paid at all. He clearly felt he had no obligation to disclose these facts to Brian because as he stated in his evidence "it was Alan's company". The only two individuals privy to this information were Mr. MacGillivray and Alan. When MacGillivray was contacted by Revenue Canada, it was not Brian he called but Alan. It was MacGillivray who prepared the documents that Brian signed at the direction of Alan. The evidence here fully supports that these two individuals, while aware of Sylvan's operations and its financial problems, intentionally kept Brian "in the dark". It is clear that these two individuals played Brian like a puppet to do their bidding so that Sylvan could continue to operate. I believe both knew that if Brian was to be told the extent to which remittances had not been made, in all likelihood he would refuse to sign documentation until they were made current. I believe Brian in good faith trusted both his father and MacGillivray and accepted what he was told - that all was well, everything was fine. In the end, he was purposively misled by two individuals in whom he had placed his trust. It is astonishing that ethically MacGillivray felt no professional obligation to provide this information to Brian as the corporate director, when he was asked, but I find it even more astonishing and abhorrent that a father would choose to have his son front these activities, knowing full well the potential financial consequences of non-remittance to Revenue Canada. This knowledge came first hand when as a director of his other two companies, Silverwood and the numbered company, he was found liable for the same tax issues. Instead of taking responsibility for his own actions and choices not to remit, he hid behind his son.
[30] The evidence clearly supports my finding that Brian was powerless to do anything. In fact I believe he felt he could not refuse to help his father when he was asked to do so because he respected his father for rearing and educating eight children. In these circumstances the Appellant ends up being the unwitting pawn in an operation controlled by his father and his father's bookkeeper. He did nothing and took no action because there was nothing he could do. His father retained total control over the corporate contract bids, its employees, wages, equipment leases and job bids, right down to the chequebook. He directed the lawyer and the bookkeeper. There was no consultation with Brian on any aspect of Sylvan's operations and I conclude that this was intentional. Brian had no way of accessing any information in respect of Sylvan except to make the occasional inquiry, which he did, of both his father and MacGillivray as to how things were going. He had no reason to suspect that his father and MacGillivray were not remitting tax. Alan knew Brian respected and trusted him and that trust was grossly betrayed. I believe he intentionally did not disclose pertinent information on his two prior companies and their remittance problems which had affected both his wife and his daughter, and that MacGillivray became part of the scheme when he too failed to truthfully answer Brian's inquiries.
[31] There was a question whether it was Brian's signature on several documents with the implication being that someone else had forged his signature. I accept the Appellant's evidence on this as he was an honest and straightforward witness but I do not feel in reaching the conclusion I have that this is an important or deciding factor in this case. I believe the Appellant, if his father and MacGillivray had directed him to sign, would have executed them under their direction. He has no business background or experience in GST accounts or payroll remittances. His educational background, his extracurricular activities, his work history, both for his father and his other employers, support this. In 1998 when these problems did surface and Brian was contacted by Greig Campbell, he immediately took steps to ensure the Revenue Canada issues were addressed. He telephoned his father and asked him to take care of it. In reality everyone felt Sylvan was Alan's company and that it was Alan who operated it and was responsible for issues such as this. Brian did the only thing he could do - go to his father and demand that he deal with it because it was his father who knew about it. Brian was powerless to do anything else. He never had control of a chequebook and his father assured him that the Revenue Canada remittances would be dealt with as soon as a job where he was experiencing problems was completed. Except for Greig Campbell's call and several telephone messages from Heather Harte it appears there were no further attempts by Revenue Canada to contact Brian. The next contact is a proposal letter sent to him, after Sylvan had closed its doors, in 2001.
[32] This case bears some resemblance to the case of Fitzgerald et al. v. M.N.R., 92 DTC 1019 where Justice Mogan stated at page 1021:
It appears to me that the Appellants were directors in law (i.e., their names appear in the Company's minute book as directors) but they were not in fact directors. They never met as directors. They never acted alone or in concert as directors. They had no knowledge of the management or administration of the Company's business. They had no equity in the Company. They had no way of compelling the fifth director (Eugene Fitzgerald, the sole shareholder) to disclose any information concerning the Company's financial affairs. They were directors in law only because of their family connection to Eugene Fitzgerald. Although any one of them could have resigned as a director if he or she had thought of it, such resignation would have been a source of family friction and, from the viewpoint of the male Appellants (the three sons), the idea of resigning as a director would not have occurred to them before the idea of quitting their employment.
I would not hold as a general rule that a passive or inactive director is free from liability under subsection 227.1(1) of the Income Tax Act. For example, a person who consents to being a director of a corporation in order to accommodate a friend or client and then fails to participate as a director in the affairs of the corporation is still very much at risk under subsection 227.1(1). The passive or inactive director is not, per se, free from liability under subsection 227.1(1). But when the passive or inactive director has become a director in the context of a family business operated by a corporation which is dominated by an uncompromising patriarch, the domestic responsibility for maintaining harmony within the family becomes interwoven with the legal responsibility to third parties and, in these circumstances, I think that it is not reasonable to impose the same standard of care, diligence and skill on the passive "family director" as on the person who is truly free to become a director and does so outside a family context.
[33] Justice Mogan's propositions are applicable to the present facts. I find the Appellant has satisfied the tests set out in subsection 323(3) of the Excise Tax Act and subsection 227.1(3) of the Income Tax Act. He exercised the degree of care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances. The key words are "in comparable circumstances" because the Appellant did behave as a reasonably prudent person would, given he was a 25-year old who obviously respected and looked up to a father who had been the breadwinner and dominated the family household. It was reasonable for the Appellant to assist his father in opening a new company when his father asked him for help as he had no knowledge that his father's first company, Silverwood, was bankrupt, owed money to Revenue Canada and that his father had been assessed for these amounts as a director, along with his mother and his sister. During the hearing information concerning a third company surfaced which the Appellant had no knowledge of. This company also owed large amounts of money to Revenue Canada. His father was the strong-willed head of the household who had provided for eight children and had always worked in the construction industry operating his own business. With the Appellant's background within the dynamics of this patriarchal household, he did exactly as any son his age would do in comparable circumstances. He assisted a father who then, along with a bookkeeper, failed to disclose pertinent information which both knew could have serious financial ramifications for the Appellant.
[34] These appeals are allowed and the assessments are vacated.
Signed at Ottawa, Canada this 29th day of September 2004.
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"Diane Campbell" |
Campbell J.
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CITATION: |
2004TCC618 |
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COURT FILE NO.: |
2003-4156(IT)I 2003-4157(GST)I |
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STYLE OF CAUSE: |
Brian MacIsaac and Her Majesty the Queen |
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PLACE OF HEARING: |
Halifax, Nova Scotia |
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DATE OF HEARING: |
July 9 and August 26, 2004 |
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REASONS FOR JUDGMENT BY: |
The Honourable Justice Diane Campbell |
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DATE OF JUDGMENT: |
September 29, 2004 |
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APPEARANCES: |
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Counsel for the Appellant: |
R. Daniel Harasemchuk |
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Counsel for the Respondent: |
Martin Hickey |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
R. Daniel Harasemchuk |
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Firm: |
Stewart McKelvey Stirling Scales Halifax, Nova Scotia |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |