RAYMOND NOWAK Appellant v. HER MAJESTY THE QUEEN, 2012 FCA 1

Federal Court of Appeal Cour d'appel fédérale Date: 20120109 Docket: A-46-11 Citation: 2012 FCA 1 CORAM: EVANS J.A. SHARLOW J.A. STRATAS J.A. BETWEEN: RAYMOND NOWAK Appellant and HER MAJESTY THE QUEEN Respondent Heard at Toronto, Ontario , on January 9, 2012. Judgment delivered from the Bench at Toronto, Ontario , on January 9, 2012. REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A. Federal Court of Appeal Cour d'appel fédérale Date: 20120109 Docket: A-46-11 Citation: 2012 FCA 1 CORAM: EVANS J.A. SHARLOW J.A.

STRATAS J.A. BETWEEN: RAYMOND NOWAK Appellant and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto , Ontario, on January 9, 2012) SHARLOW J.A. [ 1 ] This is an appeal of the judgment of the Tax Court of Canada ( 2011 TCC 3 ) affirming a net worth assessment that includes the imposition of penalties under subsection 163(2) of the Income Tax Act . [ 2 ] The submissions of counsel for Mr. Nowak included submissions on a motion to present evidence on appeal.

The evidence sought to be presented on appeal is intended to undermine the judge’s negative conclusions about Mr. Nowak’s credibility, which in turn led to the rejection of Mr. Nowak’s explanation for the source of the money that the Minister concluded was unreported income. Counsel for Mr. Nowak concedes that the evidence sought to be presented on appeal could have been presented at trial. His argument is that the evidence nevertheless should be admitted in the interests of justice because, it is alleged, counsel who acted for Mr. Nowak in the Tax Court was ineffective to the point of incompetence.

Indeed, the new evidence submission is based entirely on the allegation of ineffective counsel. [ 3 ] We have not been persuaded that the new evidence should be admitted. Not only does the evidence offered in support of the motion fall well short of establishing ineffective counsel, the proposed new evidence offers only a speculative explanation for the inconsistencies in Mr.

Nowak’s evidence that were noted by the judge and that supported his negative credibility findings. [ 4 ] As to the merits of the appeal, we have not been persuaded that the judgment under appeal is wrong in law or is based on a palpable and overriding factual error. The judge’s assessment of the credibility of Mr. Nowak was reasonably open to him on the evidence presented to him, as was his finding that Mr. Nowak deliberately understated his income. [ 5 ] The appeal will be dismissed with costs. "K. Sharlow" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-46-11 (APPEAL FROM A JUDGMENT OF THE HONOURABLE JUSTICE BRENT DATED JANUARY 4, 2011, DOCKET NO. 2009-77 (IT) G). STYLE OF CAUSE: RAYMOND NOWAK v HER MAJESTY THE QUEEN PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: January 9, 2012 REASONS FOR JUDGMENT OF THE COURT BY: (EVANS, SHARLOW & STRATAS JJ.A.) DELIVERED FROM THE BENCH BY: SHARLOW J.A. APPEARANCES : Brian Snell George Alatopulos FOR THE APPELLANT Lynn W. Gillis Sheherazade Ghorashy FOR THE RESPONDENT SOLICITORS OF RECORD : Lockyer Campbell Posner Barristers and Solicitors Toronto , Ontario FOR THE APPELLANT Myles J. Kirvan Deputy Attorney General of Canada FOR THE RESPONDENT