Director’s Claim for Contribution and Indemnity for GST and payroll remittances rejected

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Today’s decision of the Court of Appeal for Ontario in Adams v. Anderson, 2011 ONCA 381 deals with a director’s claim for contribution and indemnity and unjust enrichment against alleged fellow directors relating to the appellant’s payment of the company’s outstanding GST and payroll remittances. The appellant claimed under the Excise Tax Act, R.S.C. 1985, c. E-15 (GST) and the Income Tax Act, R.S.C. 1985, c. 1 (payroll remittances), both of which provide that a director who pays the GST or payroll remittances may claim contribution from the other directors who are liable for the claims.  In the alternative, the appellant claimed that the respondents were unjustly enriched by the payments he made.

The Court of Appeal dismissed the appeal, substituting the trial judge’s analysis with its own following Danso-Coffey v. Ontario, 2010 ONCA 171. which held that an application judge erred by purporting to determine a person’s liability as a director for retail sales tax remittances, rather than applying the Minister’s determination under the comprehensive statutory tax regime. On the issue of admission of fresh evidence, the following is particularly germane:

[9]              We do not admit the fresh evidence for several reasons. First, it is not supported by an affidavit. Second, as Laing’s counsel advises, the letter was a result of representations made to the CRA after the hearing of the appeal. The hearing of an appeal should be the final step in the final determination of all issues. Parties should not expect the opportunity to buttress their positions based on how the court responded to the arguments advanced at the hearing of the appeal. Here, it was known that the appellant would rely on this court’s decision in Danso-Coffey; Laing had ample opportunity to obtain the letter prior to the hearing of the appeal. Third, and most importantly, the March 31, 2011 letter is not a reassessment and cannot be expected to affect the result. It adds little to the October 1, 2008 letter already in the record.

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