Docket: 2007-1803(IT)G
BETWEEN:
CLYDE HOUSE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Motion heard by written submissions
By: The Honourable Associate Chief Justice
E. P. Rossiter
|
Counsel for the Appellant:
|
Ronald Cole
|
|
|
|
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Counsel for the Respondent:
|
Martin Hickey
|
____________________________________________________________________
ORDER
Upon motion by the Appellant for an Order
setting aside the Judgment rendered orally on April 22, 2009 in St. John’s,
Newfoundland;
And upon consideration of the written
submissions of the parties;
The motion is dismissed in accordance with
the attached Reasons for Order.
Signed at Ottawa,
Canada, this 19th day of June, 2009.
“E.P. Rossiter”
Citation: 2009TCC245
Date: 20090619
Docket: 2007-1803(IT)G
BETWEEN:
CLYDE HOUSE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Motion
made by written representations determined by
The Honourable E. P.
Rossiter, Associate Chief Justice
Appearances:
|
Counsel for the Appellant:
|
Ronald
Cole
|
|
|
|
|
Counsel for the Respondent:
|
Martin Hickey
|
____________________________________________________________________
REASONS FOR ORDER
[1] On April 21 and
22, 2009 I heard an appeal of the Appellant in St. John’s, Newfoundland, which
was dismissed orally on April 22, 2009, for the reasons more particularly shown
in the record.
[2] The Appellant
has filed a Notice of Motion for relief pursuant to Rule 168 and 172 of the Tax
Court of Canada Rules (General Procedure). In support of his motion, the
Appellant provides his own Affidavit and an Affidavit of his Chartered Accountant
who gave evidence at trial, Fred Cole. The grounds for the motion per the
Notice of Motion are:
The Appellant’s case was orally
dismissed in whole or in part because source documents were not tendered,
through error or omission, and the written reasons are not yet filed, and the
Appellant wishes an opportunity to locate and to file the source documents to
correct the error so a correct decision will be filed.
Rule
172
[3] Tax Court of Canada General Procedure Rule 172 states:
172. (1) A
judgment that,
(a) contains an error arising from an accidental slip or
omission, or
(b) requires amendment in any matter on which the Court did
not adjudicate,
may be amended
by the Court on application or of its own motion.
(2) A party who seeks to,
(a) have a judgment set aside or varied on the ground of fraud
or of facts arising or discovered after it was made,
(b) suspend the operation of a judgment, or
(c) obtain other relief than that originally directed,
may make a motion for the relief
claimed.
[4] Oral judgment
was rendered on April 22, 2009, but written Judgment/Order had not been signed
by the time the Notice of Motion was received by the Court. General Procedure
Rule 2 defines Judgment as to include an Order. I do not believe that this is
an appropriate case for the application of General Procedure Rule 172(1) for
several reasons:
1. Rule 172(1) relates to slips
or omissions by the Court. The Judgment does not contain an error arising from an
accidental slip or omission by the Court. There is no evidence that there was
an accidental slip or omission by the Court. Only part of the reasons on which
the Judgment was rendered was that there were no source documentation
introduced to support the position taken by the Appellant at trial,
notwithstanding that the Appellant had two opportunities to do so. In the
course of discussions with the Respondent during the assessment and
reassessment process, the Appellant specifically refused to produce source
documentation requested and refused the Respondent access to sources for source
information. Also, at trial source documents were not introduced which could have
substantiated the position of the Appellant. The Appellant was represented by
legal counsel, and had received advice from a chartered accountant, both of
whom ought to have known that source documentation was important in assessing
the issues which came before the Court in this particular appeal.
2. It is my view that an
amendment to the Judgment is not required on any matter in which the Court did
not adjudicate as the Court did adjudicate on all issues presented to it at the
hearing of the appeal.
3. The oral decision was rendered
on April 22, 2009 but by the time I traveled back to my office in Ottawa, and
before I even signed the Judgment, that is the written Order to reflect my oral
decision, I was in receipt of the Appellant’s Notice of Motion. I am not going
to deal with whether or not the Appellant’s Notice of Motion is premature as I
believe that even if it is premature, for the reasons given, I do not believe
that this is an appropriate case for the application of General Procedure Rule
172(1).
Rule
168
[5] As to a request
under General Procedure Rule 168 for reconsideration of a Judgment in the
appeal, Rule 168 states:
168. Where the Court has pronounced a judgment
disposing of an appeal any party may within ten days after that party has
knowledge of the judgment, move the Court to reconsider the terms of the
judgment on the grounds only,
(a) that the judgment does not
accord with the reasons for judgment, if any, or
(b) that some matter that should
have been dealt with in the judgment has been
overlooked or accidentally omitted.
It
is my view that the Judgment does accord with Reasons for Judgment. The
Judgment is executed on even date, and reflects the fact that the appeal was
dismissed orally on April 22, 2009 as the record would more full disclose.
There is no matter that should have been dealt with in the Judgment which has
been overlooked or accidentally omitted. All issues before the Court were
disposed of by the Court. There was a failure of the Appellant to produce
source documentation to substantiate his position. As stated, the Appellant had
two opportunities to present documentation to support his position, one to
Canada Revenue Agency upon request, and another opportunity at trial. None of
the supporting source documentation were presented.
[6] In support of this motion, the Affidavit of Clyde
House was presented. In it he states in part:
5. That I believe still may have in my
possession, or be able to obtain the source documents or a copy thereof. I
No documents were attached to his Affidavit.
[7] The Affidavit of Fred Cole, the Chartered Accountant,
was also adduced to support the motion. Attached to the Affidavit of Fred Cole were
copies of three cheques, one dated May 29, 2000 for $200,000 payable to the
Labrador Savings & Credit Union, another for $5,000 to the LSCU dated
November 16, 2000 and a third of $100,000 payable to Investors Group dated
January 18, 1999. These cheques total $305,000 but do not correspond with the viva
voce evidence given at trial that $305,000 was taken from Air Northland and
transferred to the LSCU, in the name of the Appellant’s spouse, and the
timelines. As stated, the Judgment does accord with the Reasons for Judgment
and all matters before the Court were dealt with. Nothing was overlooked or
accidentally omitted by the Court.
Rule 138
[8] General Procedure Rule 138 provides for reopening a
hearing. Rule 138 states:
138. (1)
The judge may reopen a hearing before judgment has been pronounced for such
purposes and upon such terms as are just.
(2) The judge may, at any time before judgment, draw the attention
of the parties to any failure to prove some fact or document material to a
party's case, or to any defect in the proceeding, and permit a party to remedy
the failure or defect for such purposes and upon such terms as are just.
[9] The Supreme Court of Canada in 671122 Ontario Ltd.
v. Sagaz Industries Canada Inc., 2001 SCC 59 (SCC) sets forth the test to
be applied in consideration of reopening a trial.
1. Would the
new evidence, if presented at trial, probably have changed the result?
2. Could the
evidence have been obtained before trial through the exercise of reasonable
diligence?
[10] In consider the first question, would the new evidence,
if presented at trial, probably have changed the result, we have no particulars
as to what the evidence might be. We have the affidavit of the Appellant that
he believes he may have in his possession or be able to obtain source documents
or copies thereof but we have no particulars as to which source documents he is
talking about. Also, I agree with the submission of the Respondent that there
is no suggestion as to how such documents, the identity of which have not been
provided, would change the result of the hearing.
[11] The application of Rule 138 to this appeal can be dealt
with by the answer to the question, could the evidence have been obtained
before trial through the exercise of reasonable diligence? The documents which
could have helped the Appellant in the trial certainly could have been
available. The documents were within the Appellant’s own records or failing
that, within the records of the financial institutions he was dealing with. The
fact that his accountant was able to produce three cheques dated in 1999 and
2000, the time frame of the actions before the Court, all within five days of
the oral decision of this Court, certainly indicates to me that this
documentation could have been and should have been available for the trial. The
Appellant was represented by legal counsel and a Chartered Accountant, both of
whom represented the Appellant well before the appeal was heard and also dealt with
the Respondent before the trial even started.
[12] In oral reasons, I informed the parties that this was a
case where there should have been discovery and where documents should have
been produced by the Appellant. I advised the parties that the trial date was
only set after they made the joint application for the trial date – it was not
imposed on them by the court. A joint application by both parties for a trial
date is a statement that they are ready to proceed to trial. The Appellant was
not ready to proceed for trial. They proceeded to trial without discovery and
without having their documents in order in a case where they knew, or should
have known, that documents would be an important part of proving the facts
which the Appellant has to establish in the appeal.
[13] In my view, this is not an appropriate case for
re-opening the hearing, as the Appellant has not met the conditions required
under Rule 138.
[14] The Appellant’s motion is dismissed with costs of the
motion in favour of the Respondent.
Signed at Ottawa, Canada, this 19th day of June, 2009.
“E.P. Rossiter”
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