Court File and Parties
DIVISIONAL COURT FILE NO.: DC-282/14
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: EUGENE BOZIC Plaintiff/Defendant by Counterclaim (Respondent)
- AND -
WINSTON DIXON and ROGER ROOPCHAND Defendants (Appellant)
BEFORE: SANDERSON J.
COUNSEL: Jerome H. Stanleigh for the appellant Winston Dixon
HEARD at Toronto: March 24, 2015
ENDORSEMENT
1This is an appeal to a single judge of the Divisional Court of the judgment of the Honourable Justice M. D. Godfrey dated May 13, 2014.
2The appellant submits that the Court below erred in finding that there was a loan agreement between the defendant/appellant Winston Dixon and the Plaintiff/Respondent Eugene Bozic.
3In my view this is a credibility case. The Court accepted the evidence of Mr. Bozic and Mr. Roopchand that with Dixon’s knowledge and approval Roopchand made a loan agreement on behalf of Dixon with Bozic providing that Dixon would borrow $9,868 from Bozic and that the funds would be used to invest/contribute to a charitable tax shelter so that Dixon would hopefully be able to receive tax benefits arising out of the charitable donation investment.
4The trial judge accepted Roopchand’s evidence that Roopchand spent 2 ½ hours explaining the tax shelter to Dixon. Since Dixon did not have the $9,868 needed to hopefully obtain the tax benefit, Roopchand explained that the plaintiff Bozic would lend Dixon the needed funds, provided that Dixon agreed to repay Bozic the $9,868 [plus 25% of Dixon’s net refund] when Dixon received a refund from the CRA. Dixon agreed. After Bozic lent the $9,868 to Dixon, Roopchand forwarded it to the Glooscap Heritage Society on Dixon’s behalf. Glooscap issued a charitable tax receipt to Dixon for $9,868. A T5003 was issued to Dixon showing in Box 13 that Dixon was entitled to claim $59,263.03 as an “Eligible Amount of Gift”. Dixon used these documents to claim, and initially to receive, a tax refund of more than $20,000.
5The trial judge disbelieved [as he was entitled to do] Dixon’s evidence that Roopchand did not explain to him and he [Dixon] did not agree that Dixon would be taking a loan in order to obtain the funds he needed to participate in the tax shelter scheme.
6The trial judge correctly specified that Dixon’s challenge to the Bozic loan centered on whether Bozic had proved the existence of a loan agreement between Bozic and Dixon.
7In my view, the trial judge was entitled, on the evidence before him, to reject Dixon’s evidence that he did not agree to borrow $9,868 and that he did not authorize Roopchand to enter into a loan with Bozic on his behalf.
8Dixon clearly knew that a charitable donation/investment of $9,868 was required, as well as a historical donation of $20 to the Heart and Stroke Foundation as precondition to participating in the tax shelter scheme [in the hope of receiving a tax refund of approximately $21,500].
9Dixon filed with his 2010 tax return a receipt 005165 for tax purposes in his own name in the amount of $9,868 as well as a T5003 in the amount of $59,263 issued to Dixon by Global Learning Gifting Initiative.
10There was sufficient evidence to support the trial judges’ conclusion that Dixon authorized Roopchand as Dixon’s agent to borrow $9,868 from Bozic and to repay the loan when he received the refund from Revenue Canada.
11Dixon did receive a refund from Revenue Canada plus pre-judgment interest [plus 25% of Dixon’s net refund] (before he was reassessed) and Dixon was liable at the time of that receipt to repay the $9,868 to Bozic.
12The plaintiff Bozic has waived his claim for further payments.
13The trial judge did not overlook or ignore critical evidence. His findings were based on evidence he was entitled to accept. The trial judge made no palpable and overriding error.
14Therefore the appeal is dismissed with costs if demanded. Counsel and Mr. Bozic may make written submissions on costs not to exceed 3 pages in length on or before April 15, 2015.
SANDERSON J.
Date: April 7, 2015