Citation: 2013 TCC 31
Date: 20130201
Docket: 2011-225(GST)I
BETWEEN:
MARIE BOUCHARD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Masse D.J.
[1]
This is an appeal from
an assessment dated July 27, 2010, and bearing number F-026628, made under
subsection 323(3) of the Excise Tax Act (ETA) in respect of the appellant,
Marie Bouchard, in her capacity as a director of a corporation. The corporation
in question is 9127-8168 Québec inc. which operated a business in the
restaurant sector under the name California Dream (the corporation, the company
or the restaurant). The assessment was for a total of 25,976.43 made up of goods
and services tax (GST) that the corporation should have remitted under
subsection 228(2) of the ETA for the period from March 1, 2004, to
December 31, 2005, and related interest and penalties. The assessment was
confirmed by a decision on the objection dated December 7, 2010. Hence this
appeal.
[2]
The appellant was the
sole director of the corporation during the time when the corporation operated
the restaurant. Michel Bolduc was its sole shareholder. It is undisputed that
the corporation is a legal person duly incorporated and registered for the
purposes of Part IX of the ETA. The company collected GST without remitting it
to the respondent during the period in question. Therefore, it failed to remit
the amounts of tax that it ought to have remitted. On February 22, 2008, a
judgment was rendered in respect of the company. On July 29, 2008, a writ of
seizure of immovables was reported as not having been executed or impossible to
execute. Thus, the appellant was assessed as a director under subsection 323(1)
of the ETA.
[3]
The appellant alleges
that she ceased to be a director more than two years before the assessment
date. Therefore, she is relying on subsection 323(5) of the ETA as a defence,
which provides that an assessment shall not be made more than two years after
the person last ceased to be a director of the corporation.
Factual
background
[4]
In April 2003, a new
restaurant called California Dream opened in Old Montréal. One could say
it was the appellant's restaurant. The appellant, who describes herself as a
retired lawyer, was the sole director of the corporation that operated the
restaurant. She dedicated herself entirely to the restaurant, as the restaurant
had been her dream. She took care of all aspects of running the business. She
stated that she had worked at the restaurant 100 hours per week. Unfortunately,
the restaurant was not a success. The appellant had health problems and
business management problems. Her employees robbed her. In addition, her
marriage was failing. She was extremely stressed out. Unfortunately for her,
her dream became a nightmare, and the restaurant closed on April 23, 2006 for
the last time.
[5]
She testified that she
had informed Michel Bolduc, the sole shareholder, that she no longer wanted anything
to do with the restaurant and that she could no longer be a director. Therefore,
she resigned. She alleges that, after April 23, 2006, she did nothing as a
director of the corporation and, according to her, she was no longer really the
business's director. Instead she focused on taking care of herself and on recovering
her health. She testified that, since then, she had been seeing a psychologist
and taking antidepressants.
[6]
Mr. Bolduc mandated
Jacques Matte, the appellant's spouse, to sell the restaurant's assets. Mr.
Matte is also the appellant's partner in a law firm called Matte Bouchard. In
May 2007, Mr. Matte asked the appellant to come to the office in order to sign
a resolution authorizing the sale of assets. That was when she realized that
she was still a director on the company's books. She went to the company's main
office, which is at the same address as the Matte Bouchard law firm, in order
to sign a resolution authorizing the sale. She also signed a resignation letter
on the same day, May 20, 2007 (see Exhibit A-1). Since that day, the restaurant
was finished for her and she spent her time in the country with her dogs in
order to take care of her health. She wanted to just forget and know nothing
more about it.
[7]
One day in July 2008,
the paralegal from the Matte Bouchard law firm called her to get information
about the restaurant. The paralegal asked her to come to the office to sign
some documents. On July 25, 2008, the appellant went to the office and signed a
questionnaire dated July 25, 2008, for Revenu Québec (see Exhibit A-4). The
handwriting on the document is not her own but rather that of the paralegal who
had filled out the questionnaire. The appellant said that the paralegal did not
take the time to explain the questions in the questionnaire to her. The
paralegal told her that she had just taken the information that the appellant
had provided to her on the telephone to fill out the questionnaire. She signed
the document without reading it. The appellant really had no time to waste
because there were only a few minutes left on the parking meter and she did not
want to get a parking ticket. In that state of mind, she had not read the
document – at that time she was signing documents without looking at them; she
did not want to know anything. She said that, when someone asked her to sign
documents, [Translation] "made
her sick" because of her state of mind. All of that stressed her out. To
her, documents were not at all important.
[8]
The appellant testified
that the answers to the questionnaire are inaccurate. For example, she said
that the answer to the second question is false because the corporation ceased
its activities on April 23, 2006, not March 31, 2006. She has no idea why the
paralegal wrote March 31. She answered "yes" to the question: [Translation] "Are you currently a
director of the corporation?" but to her, that question was referring to
2006, not July 25, 2008, which is the date of the document. I cannot accept
this explanation. The question, [Translation].
"Are you currently a director of the corporation?" can have
only one meaning and it is: [Translation]
"In current circumstances, at the present time, today, presently"
(see Le nouveau Petit Robert, 1993 Dicorobert inc., Montréal).
[9]
In cross-examination,
the appellant admitted that she had training in law, and we can therefore
presume that she knows the importance of carefully reading all business
documents. However, she did not read the questionnaire (Exhibit A-4) and she
did not familiarize herself with the document's contents. She signed it without
reading it. The paralegal filled out the document based on the information that
the appellant had apparently provided to her on the telephone. She trusted the
paralegal, who had explained the document to her on the telephone. According to
her, all of the questions in Exhibit A-4 refer to 2006, not 2008. The next
question states the following: [Translation]
". . . indicate the date on which you ceased to be a director. Please
provide supporting documentation." No answer was provided to this
question. However, it is clear from the appellant's testimony that the
appellant ceased to be a director on May 20, 2007, at the latest. The appellant
could have provided supporting documents – her resignation letter dated May 20,
2007 (see Exhibit A-1), the shareholders' resolution (see Exhibit A-2) and the resolution
of the board of directors (see Exhibit A-3) – but these documents, although
favourable to her, were not provided. This leads me to doubt the authenticity
of her resignation letter dated May 20, 2007, as well as of the
corresponding resolutions.
[10]
She said that, after
May 20, 2007, the date of her resignation, she did not sign any other documents
for the company [Translation] "to
the best of her knowledge". She signed no power of attorney and no
resolutions. She admitted that she is currently a director of Matte Bouchard, which
is a law firm. She said that it is a firm of paralegals. She testified that she
was in no way involved in the process of cancelling the GST and QST numbers. Mr.
Matte took care of it. Mr. Morin, who is acting for the respondent, presented
Exhibit I-4 to the appellant. It is a resolution of the company's board of
directors. This undated document authorizes Jacques Matte to represent the
company before the Ministère du Revenu du Québec regarding GST and QST. This
document bears a signature that is allegedly that of the appellant, who signed
the document in her capacity as sole director. The appellant categorically denied
having signed this document. Mr. Morin also presented Exhibit I-5 to the
appellant. That document is a power of attorney supposedly signed by the
appellant in her capacity as president. That document dated September 3, 2008,
authorizes the Minister of Revenue of Quebec to communicate information to Matte
Bouchard, avocats. The appellant denied having signed this document as well. However,
she admitted having signed an amending declaration for the purposes of the
Quebec Enterprise Register, dated April 1, 2003 (see Exhibit I-1, tab 3, page
36), and she also admitted having signed another amending declaration dated
December 23, 2003 (see Exhibit I-1, tab 3, page 30). She obviously also signed
her resignation dated May 20, 2007 (see Exhibit A-1). She agreed that she
had not followed up with Mr. Matte or the company to find out if her
resignation had been published in the Enterprise Register in accordance with
the Companies Act. She did not contact Revenu Québec or the Quebec
Enterprise Register to inform them that she was no longer a director.
[11]
Jacques Matte told us
that he is a tax advisor. Like the appellant, he is a lawyer, and both of them
practised law under the name Matte Bouchard. Their office is located at 1 Westmount
Square, suite 2000, Westmount, Quebec. The company's main office is also
located at this address. He testified that the restaurant closed in the spring
of 2006. Then, Michel Bolduc, the sole shareholder of the company, asked
Mr. Matte to take care of selling the restaurant. After the restaurant
closed, Mr. Matte was only a contact person, no more, no less. His mandate
was to sell the business's assets. The assets were finally sold on May 18,
2007. Mr. Matte signed the deed of sale in accordance with a resolution
authorizing the sale signed by the appellant. At the time of the sale, the
appellant wondered why she had to sign the resolution in her capacity as a
director given that she had nothing to do with the restaurant. Consequently,
the appellant officially resigned as director and president of the company by
submitting a letter to that effect on May 20, 2007 (see Exhibit A-1). The
appellant's resignation was accepted by Michel Bolduc, the sole shareholder of
the company, by means of a resolution of the company's shareholders signed by
Mr. Bolduc on May 21, 2007 (see Exhibit A-2). Mr. Matte was appointed a director
and president of the company by a resolution of the board of directors (see
Exhibit A‑3) signed by Mr. Matte and dated May 21, 2007. Thus, he
testified that the appellant remained the company's director until May 20, 2007,
after which date he took over as director at Michel Bolduc's request. After May
20, 2007, all administration was done by him and only by him. The appellant
performed no administrative duties at all for the company after that date. He
learned about the Notice of Assessment because the Notice was sent to the
office after the restaurant had been sold. There had been no assessment before
the appellant left her role of director. The profits from the sale of the
assets were paid to the bank and to the lessor, not to Revenu Québec.
[12]
In cross-examination,
Mr. Matte acknowledged that he is a lawyer and that he has a master's degree in
law and a bachelor's degree in accounting. Mr. Matte and the appellant
were married but are now separated. He admitted that he had spoken with
collections officers at Revenu Québec in the fall of 2007 when they called the
office. He admitted that he had informed in writing neither Revenu Québec nor
the Quebec Enterprise Register that the appellant was no longer the company's
director. He had no power of attorney signed by the appellant because he thought
that he was a director of the company even though the appellant resigned only
on May 20, 2007. Clearly, he failed to inform the Quebec Enterprise
Register about the change of director until July 2009, that is, over two years
after he had assumed the role of director and president (see Exhibit I-1, tab
3, pages 9 and 10). He said that it was an error on the part of one of the
paralegals at the office. At the end of 2007 or the beginning of 2008, Mr.
Matte took the steps necessary to retroactively cancel the tax numbers as of
June 1, 2007. When the restaurant's assets were sold, there was nothing left to
remit to Revenu Québec.
Appellant's
argument
[13]
The appellant argues
that she was no longer the company's director since the restaurant closed at
the end of April 2006. Since that date, the appellant's spouse, Jacques Matte, looked
for a buyer for the company's assets. Although the appellant had nothing to do
with the restaurant, she signed and submitted her resignation only on May 20,
2007, at Mr. Matte's request. The questionnaire (see Exhibit A-4) that she signed
had not been prepared by her, and she signed it without reading it because of
the precarious state of her physical and mental health. Her state of mind was
such that she could no longer be a director. She categorically denies having
signed the resolution authorizing Mr. Matte to represent the company before the
Ministère du Revenu du Québec (Exhibit I-4) and the power of attorney dated
September 3, 2008 (Exhibit I-5) – that is not her signature. She did not sign
those documents, and, in fact, she has signed nothing as a director since May
20, 2007, when she signed and submitted her resignation. She has taken no
actions as director since that day. She argues that she was no longer the
corporation's director since the end of April 2006, when she had closed the
restaurant. At the latest, she last ceased to be a director on May 20, 2007,
when she resigned, and she has done nothing since that date, over two years
before the assessment date. Therefore, she has no obligation to pay the tax,
interest and penalties under subsection 323(1) of the ETA, given that this
obligation is statute-barred under subsection 323(5).
The
respondent's position
[14]
The respondent claims
that the appellant still acted as a director of the company during the periods
when the company was liable to pay net tax to the respondent. The appellant was
liable to pay the net tax that the company had failed to remit to the
respondent. The respondent argues that, despite her resignation, the appellant
never ceased to be a director of the company. The appellant was a de jure
and de facto director at all relevant times. The respondent claims that
the appellant did not really resign in 2007, but that she resigned only in July
2009. The resolution that removes the appellant as a director and replaces her
with Mr. Matte was dated retroactively to a date over two years before the
assessment date. The respondent argues that the appellant signed the documents
in Exhibits I-4 and I-5 even though the appellant denies that the signature on
those documents is hers. Signing either a resolution or a power of attorney is
an act of a director. The power of attorney, Exhibit I-5, was signed on
September 3, 2008, less than two years before the assessment date. Even if
Exhibit A-1 is a resignation letter, the appellant continued to act as a
director and therefore she was a de facto director because she granted
power of attorney and signed the company's resolution. In addition, the
resignation was not submitted to the Enterprise Register until July 20, 2009. Therefore,
she is presumed to have been a director unless she can rebut this presumption. Given
that she had continued to be a director of the company until September 3, 2008,
a date that is less than two years before the assessment date, the appellant
cannot raise the defence of prescription in subsection 323(5) of the ETA. Therefore,
the appellant is solidarily liable together with the company to pay the
assessment amount as well as interest and penalties relating to it under
subsection 323(1).
Statutory
provisions
[15]
The relevant provisions
of the ETA are as follows:
323. (1) If a corporation fails to remit an amount of net tax
as required under subsection 228(2) or (2.3) or to pay an amount as required
under section 230.1 that was paid to, or was applied to the liability of, the
corporation as a net tax refund, the directors of the corporation at the time
the corporation was required to remit or pay, as the case may be, the amount
are jointly and severally, or solidarily, liable, together with the
corporation, to pay the amount and any interest on, or penalties relating to,
the amount.
(2) A director of a corporation is not
liable under subsection (1) unless
(a) a
certificate for the amount of the corporation's liability referred to in that
subsection has been registered in the Federal Court under section 316 and
execution for that amount has been returned unsatisfied in whole or in part;
(b) the
corporation has commenced liquidation or dissolution proceedings or has been
dissolved and a claim for the amount of the corporation's liability referred to
in subsection (1) has been proved within six months after the earlier of the
date of commencement of the proceedings and the date of dissolution; or
(c) the
corporation has made an assignment or a bankruptcy order has been made against
it under the Bankruptcy
and Insolvency Act and a claim for the amount of the corporation's liability
referred to in subsection (1) has been proved within six months after the date
of the assignment or bankruptcy order.
(3) A director of a corporation is not
liable for a failure under subsection (1) where the director exercised the degree
of care, diligence and skill to prevent the failure that a reasonably prudent
person would have exercised in comparable circumstances.
(4) The Minister may assess any person
for any amount payable by the person under this section and, where the Minister
sends a notice of assessment, sections 296 to 311 apply, with such
modifications as the circumstances require.
(5)
An assessment under subsection (4) of any amount payable by a person who is a
director of a corporation shall not be made more than two years after the
person last ceased to be a director of the corporation.
[16]
The question of the
date on which a person ceases to be a de facto director often arises in
the context of subsection 323(5) of the ETA. This subsection provides that an
assessment under subsection (4) of any amount payable by a person who is a
director of a corporation shall not be made more than two years after the
person last ceased to be a director of the corporation. Therefore, the date on
which a person last ceases to be a director of a company is very important and
is sometimes difficult to determine. Everything depends on the facts of the
case.
[17]
In this case, the
assessment was issued on July 27, 2010. Therefore, the only issue to address is
whether the appellant last ceased to be a director before July 27, 2008, that
is, two years before. If that is the case, the assessment is statute-barred
under subsection 323(5) of the ETA, and the appellant is in no way obliged to
pay the respondent the assessment amount. If the appellant last ceased to be
the director after July 27, 2008, she is liable to pay the assessment amount as
well as the penalties and interest associated with it.
Analysis
[18]
I have read and
considered the following decisions, provided to me by Mr. Morin, who is
acting for the respondent: Bouchard c. Services financiers Excellence Inc.,
[1998] J.Q. no 1351, by Judge Gobeil, April 1, 1998; Jean-Rock Dodier Inc.
c. Robert Champagne et al, C.Q. Québec 200-22-019076-017, by Judge Vézina,
May 29, 2002. These decisions deal with the situation where a director or
shareholder fails to file an amending declaration with the companies register
of the province in question or of the federal government. This failure to file
a notice of change of director form with the responsible body results in the
presumption that the person entered in the register as a director continues to
act as such, unless there is evidence to the contrary. Mr. Rivard, who is
acting for the appellant, provided me with the following decisions: Gagnon
c. Québec (Sous-ministre du Revenu), 2004 CanLII 5287, C.Q.
160-22-000194-030, by Judge Tremblay, May 26, 2004; Burton v. The Queen,
2005 TCC 762, by Justice McArthur, December 5, 2005; Québec (Commission de
la construction) c. Marin, 2005 CanLII 50228, C.Q. 605‑22‑000889-014,
by Judge Lemoine, December 14, 2005. These decisions provide examples where the
presumption was rebutted. Needless to say, it all
depends on the facts of the case.
[19]
I have also consulted
case law dealing with de facto and de jure directors. A director
who continues to act as a director of a company and to hold him or herself out
to third parties as such may be considered a de facto director despite
his or her resignation. Such a director remains subject to the responsibilities
imposed by section 323 of the ETA. The issue is to identify the relevant
factors for being considered a de facto director. According to the
Federal Court of Appeal in Kalef v. The Queen, [1996] 2 C.T.C. 1
(F.C.A.) and Wheeliker v. Canada, [1999] 2 C.T.C. 395 (F.C.A.), a person
who has resigned from his or her position may nonetheless be deemed a de
facto director if he or she exercises the prerogatives and responsibilities
normally assigned to directors. The author Paul Martel explains this as
follows:
[Translation]
As the name suggests, a de
facto director will be considered a director where, in effect, the person
usurps the position by engaging in acts that are normally reserved for
directors, such as participating in meetings of the board of directors, signing
resolutions of the board, making or taking part in management or disposition
decisions, giving instructions on behalf of the company, holding himself or
herself out to third parties as a director, etc. (Paul Martel. La société
par actions au Québec, Volume I, Les aspects juridiques. Loose-leaf.
Montréal, QC: Éditions Wilson & Lafleur, Martel Ltée, March 2012, at paras
21-68.)
[20]
In McDougall v.
Canada, [2000] G.S.T.C. 99 (T.C.C.), confirmed by [2002] G.S.T.C. 127
(F.C.A.), the three founders of the company including the appellant signed bank
forms that indicated that the appellant was the director of the corporation. The
appellant also provided information to Revenue Canada, including the
corporation's GST registration, and signed documents as a director. The Federal
Court of Appeal confirmed the decision made by the Tax Court of Canada that the
appellant was a de facto director for the purposes of section 323 of the
ETA.
[21]
In the decision Dufault
Hattem v. The Queen, 2008 TCC 32, Justice Lamarre Proulx ruled that,
if a director continues to communicate with the tax authorities without
informing them of his or her resignation, he or she may be considered a de
facto director. More specifically, my colleague stated the following at
paragraphs 31 and 33 of her Reasons for Judgment:
[31] If
a director resigns from the board of a corporation that is a tax debtor, and
wishes the resignation to be a juridical act that is valid as against the
Minister, then, according to the Quebec Companies Act, that director
must notify the Minister of his resignation in the course of the exchanges of
correspondence regarding the corporation's tax debt and the liability of its
directors. I do not think that statutes of the other provinces or the federal
Act concerning companies are any different in this regard.
. .
.
[33] A
person who holds himself out to third parties as a director becomes by virtue
thereof a de facto director. . . .
[22]
In Ustel v. The
Queen, 2010 TCC 444, the appellant had resigned from his position in 2002
but signed tax returns as a director in 2003-04. The appellant admitted that he
had resigned from his position of director in order to limit his liability in
respect of the corporation's unpaid tax debts. In addition, the appellant
failed to notify the Canada Revenue Agency following his resignation and failed
to enter his resignation in the corporation's books. My colleague Justice Hogan
ruled that, in 2008, when the assessment was issued, the appellant was still a de
facto director. Accordingly, Justice Hogan found that the Canada Revenue
Agency had reasonable grounds to believe that the appellant continued to be a
director in 2008, and therefore he could not rely on the two-year limitation
period under subsection 323(5) of the ETA.
[23]
Did the appellant last
cease to be a director of the corporation before or after July 27, 2008? Did
she take any actions in her capacity as director after July 27, 2008? The
question of who signed which documents and when these documents were signed is
an issue of key importance to the decision I have to make. It is the
authenticity of the supposed signature of Marie Bouchard on the documents at
issue or on file that is at issue. I must decide whether she signed the two
documents the authenticity of which she is disputing, namely, Exhibits I-4 and
I-5.
[24]
In R. v. Cunsolo,
[2011] O.J. No. 4204 (QL), 277 C.C.C. (3d) 435, Justice Hill, a very respected
judge of the Ontario Superior Court, ruled that a judge or jury may perform a
handwriting comparison without necessarily needing evidence from a handwriting
expert. Justice Hill stated the following at paragraph 246 et seq.:
[246] A trier of fact is
entitled, and indeed not precluded, as a matter of common law, to undertake a
comparative analysis of handwriting specimens without the intervention of witnesses
interpreting or identifying the relevant writing – a deliberative and
fact-finding process which is not ousted by s. 8 of the Canada Evidence Act
which provides:
§ Comparison of a
disputed writing with any writing proved to the satisfaction of the court to be
genuine shall be permitted to be made by witnesses, and such writings, and the
evidence of witnesses respecting those writings, may be submitted to the court
and jury as proof of the genuineness or otherwise of the writing in dispute.
See R. v. Abdi 1997 CanLII 4448 (ON CA), (1997), 116 C.C.C.
(3d) 385 (Ont. C.A.), at paras. 13-23, 25; R. v. Malvoisin (2006), 36
M.V.R. (5th) 187 (Ont. C.A.), at para. 4.
[247] It
is important as an aspect of the accused knowing the case to be met, that he or
she be on notice that the trier of fact may engage in comparative handwriting
identification analysis: R. v. Flynn, 2010 ONCA 424 (CanLII), 2010 ONCA 424, at
para. 20; R. v. Anderson, 2005 BCCA 143 (CanLII),
2005 BCCA 143, at paras. 11-14.
. . .
[250] . .
. a trier of fact is entitled to use his or her "own eyes and ... common
sense" in making "an educated and reasonable comparison" of
handwriting properly tendered in evidence (Abdi, at paras. 26, 29). . .
.
It must be noted that Cunsolo was a criminal
case where the burden of proof is very heavy. Therefore, the same principles
may certainly be applied in a civil case.
[25]
Let us consider the
supposed signatures of the appellant, Marie Bouchard. Exhibit I-1, tab 3,
contains copies of documents from the Quebec Enterprise Register concerning the
company. The signature "Marie Bouchard" may be seen at pages 13, 15,
24, 30 and 36. The signatures at pages 24, 30 and 36 are all very similar to
each other. Therefore, I can conclude that the same person probably signed at
pages 24, 30 and 36. The appellant admitted that the signature at page 36 is
hers; therefore, I can conclude that the signatures at pages 24 and 30 are
probably hers as well. Indeed, there is no reason why someone other than Marie
Bouchard would have signed these documents.
[26]
The signatures at pages
13 and 15 are very similar to each other. Therefore, I can conclude that the
same person signed at pages 13 and 15. However, the signatures at pages 13 and
15 are completely different from those at pages 24, 30 and 36. Thus, we may
conclude that someone other than the appellant signed pages 13 and 15. Why? I
do not know.
[27]
The appellant
categorically denied having signed Exhibit I-4 (undated resolution of the board
of directors authorizing Jacques Matte to represent the company with the Ministère
du Revenu du Québec regarding GST and QST) and Exhibit I-5 (power of attorney
authorizing Revenu Québec to communicate information to Matte Bouchard). But
she admitted having signed Exhibits A-4 (the questionnaire), the amending
declaration (see Exhibit I-1, tab 3, page 36) and her resignation letter
(Exhibit A-1). A comparison of the documents that she admitted having signed
(Exhibits A-1 and A-4 and Exhibit I-1, tab 3, page 36) with the documents that
she denied having signed (Exhibits I-4 and I-5) shows that all the signatures
are very similar. Marie Bouchard's signature is very distinctive and complex. The
shape of the letters in each of the signatures is similar. Although there are
some small differences and variations among the signatures in the Exhibits,
they are insignificant differences and variations. We may certainly expect differences
and variations in our writing from one day to the next as no one signs their
name in exactly the same way twice. Marie Bouchard's signature has such unique,
distinctive and complex characteristics, that it would be very difficult for a
person other than Marie Bouchard to copy her signature precisely and exactly. All
of this leads me to find that Marie Bouchard probably signed the documents at
issue or on file in Exhibits A-4 and A-5 despite her protestations to the
contrary. In addition, we must ask ourselves who else would have a reason to
sign resolutions of the company's board of directors and who else would have a
reason to sign a power of attorney or authorization as the company's president?
[28]
There is another aspect
of this case that militates against the appellant's argument and which satisfies
me even further that the signatures on Exhibits I-4 and I-5 are probably those
of Marie Bouchard. On September 3, 2008, Jacques Matte as the company's agent
sent a letter dated September 3, 2008, to Revenu Québec, asking that all of the
company's GST and QST numbers be cancelled (Exhibit I-6). We can see that
Exhibit I-5, the power of attorney, allegedly signed by the appellant authorizing
Revenu Québec to communicate with Matte Bouchard is also dated September 3,
2008. Coincidence? I think not. In addition, the letter (Exhibit I-6) was
faxed to Revenu Québec on September 17, 2008, at 15:48. The fax number is 514‑937-2971,
which is the fax number of Matte Bouchard. Exhibit I-5 was sent to Revenu
Québec by means of the same fax machine on the same date and at the same time:
September 17, 2008, at 15:48. The undated resolution of the board of directors supposedly
signed by Marie Bouchard (see Exhibit I-4) bears the same date, time and fax
number. Fax machines are quite ubiquitous and are so omnipresent in all
business offices across Canada that I can take judicial notice of the fact that
the date, time and fax number of the sender of a document are printed on the
copy of the recipient of the document. It is difficult to resist the conclusion
that Mr. Matte obtained the appellant's signature on Exhibits I-4 and I-5 with
the aim of sending them to Revenu Québec. Jacques Matte and Marie Bouchard are
the only people who have any reason to send these documents to Revenu Québec. I
agree with Mr. Rivard that the two documents at issue should have been shown to
Mr. Matte, like they were shown to Marie Bouchard, so that the Court could
at least have had his explanations, but this was not done. In any case, I doubt
that Mr. Matte could have given a satisfactory explanation. Either
Exhibits I-4 and I-5 were signed by Marie Bouchard or someone forged her
signature on the exhibits.
[29]
Unfortunately, I have
come to the conclusion that, when Mr. Matte tells me that Marie Bouchard has
done nothing as a director of the company after May 20, 2007, I do not
believe him. Similarly, when Marie Bouchard tells me that she has done nothing
as a director after May 20, 2007, I do not believe her. When Marie Bouchard
tells me that she did not sign Exhibits I-4 and I-5, I do not believe her.
Their testimony to that effect is not credible.
Conclusion
[30]
I find that the
appellant, Marie Bouchard, did not discharge her burden of proof and rebut the Minister’s
exact assumptions: see Hickman Motors Ltd. v. Canada, [1997] 2 S.C.R.
336. I am satisfied that, despite her alleged resignation dated May 20, 2007,
the appellant continued to be a director of the company signing resolutions and
a power of attorney in her capacity as president and director of the company until
September 3, 2008, at the latest, which is less than two years before the
assessment date. She was therefore a de facto director if not a de
jure director. Therefore, she cannot rely on the defence of prescription
under subsection 323(5) of the ETA. The fact that the change of director was
published in the Quebec Enterprise Register only two years after her supposed
resignation even further satisfies me of this fact.
[31]
For these reasons, the
appeal is dismissed.
Signed at
Kingston, Ontario, this 1st day of February 2013.
"Rommel G. Masse"
Translation certified true
on this 18th day of March 2013
Margarita Gorbounova, Translator
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