Docket: 2007-3974(IT)G
BETWEEN:
PETER BARRY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
ORDER
Upon reading the Notice of Motion filed by the
Appellant on April 28, 2008 requesting an Order that the cross-examination of
the Appellant on May 2, 2008 be dispensed with and upon reading the affidavit
of the Appellant filed with this Notice of Motion;
And upon reading the Respondent’s written
representations opposing the Appellant’s Motion;
It is ordered that the Appellant’s motion is
dismissed.
Signed at Halifax, Nova Scotia, this 30th day
of April 2008.
“Wyman W. Webb”
Citation: 2008TCC272
Date: 20083004
Docket: 2007-3974(IT)G
BETWEEN:
PETER BARRY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
[1]
The Appellant filed an appeal to
this Court. The Respondent filed a Notice of Motion requesting an Order
striking out the Notice of Appeal on the basis that for most of the years under
appeal, the Appellant had waived in writing his right to appeal and that for one
of the years under appeal no notice of objection had been filed. The Appellant
filed a response to this Notice of Motion, including an affidavit of the
Appellant. This motion is scheduled to be heard in Hamilton on
June 3, 2008.
[2]
The Appellant has filed a Notice
of Motion requesting an Order that cross‑examination of the Appellant on
May 2, 2008 be dispensed with. It appears from the affidavit of the Appellant
that the Respondent served the Appellant with a Notice of Examination requiring
the Appellant to attend at an examination on May 2, 2008 at which the
Respondent will cross‑examine the Appellant on his affidavit filed in
relation to the Respondent’s Motion.
[3]
The Appellant, in his Notice of
Motion, requested that his Motion be disposed of upon consideration of written
representations and without appearance of the parties. The Respondent has filed
written representations in opposition to the Appellant’s Motion. Paragraph 69
of the Tax Court of Canada Rules (General Procedure) (“Rules”)
provides as follows:
69. (1) A party filing a notice of motion may, at the same time, or
subsequently, file a written request that the motion be disposed of upon
consideration of written representations and without appearance by the parties.
(2) A copy of the request and of the written
representations shall be served on all parties served with the notice of
motion.
(3) A party served with a
request shall within twenty days,
(a) file and serve
written representations in opposition to the motion, or
(b) file and serve a written request for a
hearing
(4) When all parties served
with the request have replied to it or the time for doing so has expired, the
Court may,
(a) grant judgment
without a hearing,
(b) direct a hearing, or
(c) direct that written representations be filed
[4]
Paragraph 74 of the Rules
provides as follows:
74. A deponent whose affidavit has been filed may be cross-examined
on it by a party who is adverse in interest on the motion, and the evidence
adduced may be used at the hearing of the motion.
[5]
This paragraph is clear and
therefore, as requested by the Appellant, judgment will be granted in this
matter without a hearing. Since the Appellant has filed his affidavit he may be
cross‑examined on it by the Respondent in this matter. As a result, the
Appellant's Motion for an Order that cross‑examination of the Appellant
be dispensed with is dismissed.
[6]
It should be noted that paragraph
74 of the Rules applies to both parties. Therefore if the Appellant
should wish to cross‑examine the deponent of the affidavit filed by the
Respondent, then the Appellant has the right to do so under paragraph 74 of the
Rules. The procedural fairness issue referred to in the Appellant’s
Notice of Motion that it would be unfair to allow the Respondent to cross‑examine
the Appellant without the Respondent producing the deponent of her affidavit
for cross‑examination, is addressed by paragraph 74 of the Rules
which permits any party who is adverse in interest on the motion to cross‑examine
a deponent of an affidavit that has been filed. Therefore, as noted above, the
Appellant has the right to cross‑examine the deponent of the affidavit
filed by the Respondent, if the Appellant should choose to do so.
Signed at Halifax,
Nova Scotia, this 30th day of April 2008.
“Wyman W. Webb”
CITATION: 2008TCC272
COURT FILE NO.: 2007-3974(IT)G
STYLE OF CAUSE: PETER BARRY AND THE QUEEN
REASONS FOR ORDER BY: The Honourable Justice Wyman W. Webb
DATE OF ORDER AND
REASONS FOR ORDER: April 30, 2008
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the
Respondent: John H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa, Canada
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