http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/218781/index.do
Helgesen v. Canada (February 1, 2017 – 2017 FCA 21, Stratas, Webb, Scott (author) JJ. A.).
Précis: Mr. Helgesen was assessed for tax and unremitted payroll deductions pursuant to section 227.1 of the Income Tax Act (the “Act”). He unsuccessfully appealed to the Tax Court attempting to establish a due diligence defence. He appealed to the Federal Court of Appeal which held that he had not made out any reversible error by the Tax Court Judge. The appeal was dismissed from the Bench with costs to the Crown.
Decision: Unfortunately for Mr. Helgesen, the Court of Appeal made short work of this appeal:
[4] An appeal from a decision of the Tax Court determining whether a due diligence defence under subsection 227.1(3) of the ITA has been established, requires the application of a legal standard to a set of facts. It is, therefore, a question of mixed fact and law which is reviewable on a standard of overriding and palpable error, unless the appellant can show an error of law or extricable principle of law, which he has not done here (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at paragraphs 26-37; Canada v. Chriss, 2016 FCA 236 at paragraph 7, [2017] 1 C.T.C. 107).
[5] In the present appeal, despite the able submissions from counsel for the appellant, we are all of the view that the Judge did not make a palpable and overriding error in reaching his determination. The appellant has failed to establish that a reasonably prudent person would rely simply on third party assurances that remittances were being made when it was clear that these persons had misled him about making remittances in the past. Moreover, the appellant knew that remittances were not made as he received letters from the Canada Revenue Agency to that effect on July 16, July 18, and August 2, 2008. He failed to take any direct action to ensure that the corporation made its remittances as required.
Accordingly the appeal was dismissed with costs of $500, all inclusive, to the Crown.