Date: 20000626
Dockets: 97-1632-IT-G; 97-1633-IT-G
BETWEEN:
RONALD J. MILLER ,R.J. MILLER ASSOCIATES (1986) LTD.
Appellants,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Order
McArthur J.T.C.C.
[1] A hearing of the appeals in this matter was held on
October 4, 5, 6 and 7, 1999. Before judgment was rendered, the
Appellants made application for an order reopening the case
pursuant to rule 138(1) of the Tax Court of Canada Rules
(General Procedure). The grounds for the motion are that the
Appellants have further evidence to the effect that a prototype
gun has now been completed and an advertising and market campaign
has been designed. Various licenses have been issued, potential
investors and manufacturers have been contacted and further
expenditures have been incurred: Rule 138(1) of the Rules
reads:
138(1) The judge may reopen a hearing before judgment has been
pronounced for such purposes and upon such terms as are just.
The Appellants' position is that the new evidence is
relevant to the issue of whether there was a viable business
during the relevant years 1992, 1993 and 1994
Respondent's Position
[2] The evidence that the Appellants seek to have admitted
concern facts that have arisen after the hearing and are totally
irrelevant to the issues. The Respondent referred the Court to
Morrison v. Hicks,[1] and Clayton v. British American Securities
Ltd.[2]
[3] There is no question that I have a discretion to resume
the hearing of the appeals but that discretion should be used in
exceptional circumstances. In Lubrizol Corp. v. Imperial Oil
Ltd.,[3]
the Federal Court of Appeal was asked to review the trial
judge's decision not to reopen a case and permit new
evidence. The Federal Court of Appeal found that the trial judge
failed to give sufficient weight to the fact that the Appellant
would be permanently deprived of an opportunity of defending
itself. The Court concluded that the Appellant should not be
deprived of a fair opportunity to fully respond to the grave
misconduct with which it was charged. The Court added that
fairness and justice required that the Appellant be permitted to
adduce further evidence.
[4] In the present appeal, given all of the circumstances, I
find that in the furtherance of fairness and justice, the
Appellants should be permitted to enter the evidence they
request. This Court has been presented with additional and
relevant evidence and justice would not be served by simply
ignoring it.
[5] I would be remiss in not complimenting Respondent's
counsel for her practical decision in consenting to the admission
of the evidence as filed by way of the Appellants' affidavits
and exhibits.
[6] The parties are given 30 days from the date of this Order
to make written submissions with respect to the weight to be
given to further evidence submitted by counsel for the Appellants
during the hearing of this motion.
Signed at Ottawa, Canada, this 26th day of June, 2000.
"C.H. McArthur"
J.T.C.C.
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