Garcha v. The Queen, 2005 TCC 631

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Motions heard on August 29, 2005, at Vancouver, British Columbia, by

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ORDER

          UPON motions by the Respondent for Orders that the Appellant provide particulars as demanded by the Respondent in Demands for Particulars filed and served on March 7, 2005; and costs;

          AND UPON reading the affidavit of Julie Nguyen, filed;

          AND UPON hearing counsel for the parties;

                IT IS ORDERED THAT the motions are denied, with costs in the cause.

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Signed at Ottawa, Canada, this 22nd day of September, 2005.

McArthur J.

REASONS FOR ORDER

McArthur J.

[1]      These are motions for an Order to have the Appellant provide particulars demanded by the Respondent in Demands for Particulars filed and served on March 7, 2005. The Minister of National Revenue assessed the Appellant for the 2000 and 2001 taxation years, and including a goods and services tax determination for the period January 1, 2000 to December 31, 2001, using the net worth method.

[2]      In his Notices of Appeal, counsel for the Appellant simply pleads that: "The Appellant's income tax returns for his 2000 and 2001 taxation years were correct as filed". Appellant's counsel describes the issues in the notice of appeal for the informal procedure as:

7.          The issues in this appeal are:

            (a)         whether the Minister's arbitrary reassessments of tax are correct,

            (b)         whether the Appellant had any additional income other than that             reported in his 2000 and 2001 taxation years and

           (c)          whether the Minister erred in imposing penalties under subsection 163(2) of the Act.

and in the notice of appeal for GST as:

9.          The issues in this appeal are:

           (a)          whether the Minister erred in assuming that the Appellant had any income whatsoever from a proprietorship, that is, whether the Appellant had any income other than that reported by him for his 2000 and 2001 taxation years; and

           (b)          whether the Minister erred in imposing GST and penalties with respect to the alleged additional income from a proprietorship.

[3]      The Respondent's Replies to the Notices of Appeal contain a number of assumptions of fact and schedules, all of which attempt to identify precisely how the assessments were arrived at, after an extensive audit. The Respondent's counsel is concerned because the Appellant has not identified what items and amounts the Appellant disagrees with.

[4]      The Notices of Motion state:

2.          The Appellant has not pleaded sufficient material facts to permit the Respondent to determine which elements of the reassessment are in issue for purposes of disclosure of documents and examinations for discovery;

3.          The Appellant has not replied to a Demand for Particulars filed and served on the Appellant on March 7, 2005.

[5]      I can understand the Respondent's frustration. He has comprehensively set out the assumptions upon which the assessment is based. It informs the Appellant of the case that is to be met. Pleadings are intended to serve the practical purpose of providing information about the party's case. I agree that the Appellant has not been forthcoming, yet I believe this motion is premature. The Replies are somewhat overwhelming. The Appellant may know his detailed position. At this stage, I believe that the Appellant is entitled to await discovery before advancing more particulars. Should the Appellant not be more forthcoming during the discovery process, it may be appropriate for the Respondent to re-submit the motions. The Respondent appears to have set out his position in an upfront and straight-forward manner. The Appellant is expected to do the same during, or shortly after discoveries, to permit the parties and subsequently, the trial judge to know what the specific issues boil down to and the facts the parties intend to rely on.

[6]      The motions are denied, with costs in the cause.

Signed at Ottawa, Canada, this 22nd day of September, 2005.

McArthur J.