Court File and Parties
CITATION: Bozic v. Dixon, 2015 ONSC 2193
DIVISIONAL COURT FILE NO.: DC-282/14
DATE: 20150407
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
[1] This 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.
[2] The 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.
[3] In 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.
[4] The 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.
[5] The 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.
[6] The 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.
[7] In 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.
[8] Dixon 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].
[9] Dixon 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.
[10] There 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.
[11] Dixon 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.
[12] The plaintiff Bozic has waived his claim for further payments.
[13] The 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.
[14] Therefore 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