Date: 20010809
Docket: A-479-00
Neutral citation: 2001 FCA 249
CORAM: SHARLOW J.A.
BETWEEN:
MELBA FLORINE MANSON AND MELBA FLORINE MANSON IN RIGHT OF
ESTATE OF HUGH MANSON (deceased husband)
Appellant
and
HER MAJESTY THE QUEEN AS REPRESENTED BY THE MINISTER OF NATIONAL REVENUE AND CANADA CUSTOMS AND REVENUE AGENCY
Respondent
Dealt with in writing at Ottawa, Ontario, August 9, 2001
Order delivered at Ottawa, Ontario, August 9, 2001
REASONS FOR ORDER BY: SHARLOW J.A.
Date: 20010809
Docket: A-479-00
Neutral citation: FCA 2001 249
CORAM: SHARLOW J.A.
BETWEEN:
MELBA FLORINE MANSON AND MELBA FLORINE MANSON IN RIGHT OF
ESTATE OF HUGH MANSON (deceased husband)
Appellant
and
HER MAJESTY THE QUEEN AS REPRESENTED BY THE MINISTER OF NATIONAL REVENUE AND CANADA CUSTOMS AND REVENUE AGENCY
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1] This appeal challenges a decision of Mr. Justice Gibson dated May 23, 2000. There was some dispute at the outset as to whether the appeal was commenced on a timely basis. The appellant Melba Florine Manson, acting for herself in her personal capacity and also in her capacity as executor of the Estate of Hugh A. Manson, submitted the notice of appeal to the Registry on June 12, 2000. It appears that a Registry officer believed that the decision under appeal was an interlocutory decision (which would have required the appeal to be commenced within 10 days). In a separate proceeding resulting in an order made on July 13, 2000, Madam Justice Reed determined that the decision was not interlocutory but final, and that the appeal period was therefore 30 days. As a result, the appeal was treated as having been filed on June 12, 2000, within the permitted appeal period.
[2] The time for filing the appeal book has expired with no agreement being reached as to its contents of the appeal book. Four extensions of time have been granted to permit the filing of a motion to settle the contents of the appeal book. The most recent extension was granted by me on May 30, 2001, to extend the time to July 30, 2001.
[3] On July 18, 2001, Ms. Manson filed a document that purports to be a motion for determining the contents of the appeal book. However, it does not propose the contents of the appeal book. Counsel for the respondent argues that the July 18, 2001 motion should be dismissed, and that this appeal should also be dismissed for failure to comply with the rules regarding the obligation of the appellant to file an appeal book and, where necessary, to file a motion to establish its contents.
[4] The purpose of the appeal book is to assemble in one or more volumes all of the documents that the judges hearing the appeal may have to refer to in order to determine the appeal. The contents of an appeal book are described in Rule 344(1). Rule 343(1) requires the parties to agree on the contents of the appeal book, but if they cannot agree, the appellant is obliged by rule 343(3) to serve and file a notice of motion under Rule 369 to request that the Court determine the contents of the appeal book.
[5] In this case the material filed by Ms. Manson and counsel for the respondent discloses a dispute about the inclusion of items of new evidence that might be included under Rule 344(1)(g) if they were the subject of a successful motion under Rule 351. I am prepared to treat the July 18, 2001 motion as including both a motion to adduce new evidence on appeal and a motion to have the Court determine the contents of the appeal book.
[6] Generally, a party to proceedings in a trial or application is required to exercise due diligence in order to bring forward all evidence relevant to the issues to be dealt with. For that reason, a motion to admit new evidence on appeal normally will not succeed unless the evidence could not have been adduced at trial by the exercise of due diligence and the evidence, if admitted, would be practically conclusive of an issue under appeal: Amchem Products Inc. v. British Columbia (Workers' Compensation Board) (1992), 192 N.R. 390 (S.C.C.). The onus is on Ms. Manson to establish that these conditions have been satisfied or, if they have not been satisfied, that the interests of justice nevertheless require the evidence to be admitted.
[7] In this case, the new evidence upon which Ms. Manson seeks to rely is described as follows on pages 4 and 5 of Ms. Manson's notice of motion:
1. Reporting letter from Counsel Margaret Irving to the Honourable Madame Justice Reid answering to her request for a report on the confusion over the May 23, 2000 Order given by the Honourable Justice F.E. Gibson;
2. Letter or agreed testimony from Court Clerk, Mr. Dan Buell, concerning to whom he was speaking by telephone, for ten minutes, while the Appeal was attempting to be filed, and where he later stated the Order by Justice Gibson was "interlocutory" therefore, as 19 days had passed, the appeal was too late, therefore causing Madame Justice Reid's later ruling and why subsequent appeal efforts have been improperly routed or delayed.
3. Is a news issue from Washington D.C. concerning a result of their new law being HR 3396, Citizen Protection Act, McDade-Murtha Bill, brought out to curb and clean out the corruption that has settled into the permanent bureaucracy of their Department of Justice, and a relative issue being an interview between former MP Jack Ramsay of Canada, concerning one Neil Sher, a confirmed activist of the Nazi regime, that intelligence data coming from the investigations of the Executive Intelligence Review and the New Federalist Newspaper of one Lyndon LaRouche, a well known and highly credible figure and statesman.
4. Is a more recent update of that matter, highlighting the damage caused by the internal corruption of such important facilities, and this updated material follows on the heels of the withheld disclosures of the F.B.I. regarding the Oklahoma Murrah Building cover ups, etc., being flushed out by the effects of the HR396, made law, to clean up these destructive elements;
5. Is the personal affidavit of the Appellant, updated currently, and attaching several items of indisputable proof, that the Appellant in this matter, has been grossly attacked unjustly, and that is a matter that now must be addressed through the procedure of this appeal, or in special forum approved by this Honourable Court of Appeal, as waiting further time for all objections and matters to clear in Tax Court, sends additional damage upon the Appellant.
[8] I am unable to discern from the material filed by Ms. Manson any basis for concluding that items 1, 2, 3 or 4 are relevant to the appeal of the order of Mr. Justice Gibson. The motion to adduce those items as evidence in the appeal is denied.
[9] The affidavit of Ms. Manson referred to in item 5, sworn on July 17, 2001, contains a number of allegations. Paragraphs 2, 3 and 8 say that Ms. Manson's son was wrongfully prosecuted in the provincial court of Alberta for making threats against certain officials of Revenue Canada, (or the Canada customs and Revenue Agency) and that in 1988 Mr. Justice Gibson had ruled against her son in what is said to be a matter related to the present appeal. The alleged relationship between the two matters is not explained. Appended to the affidavit as exhibit A is a copy of the transcript of a ruling issued on June 5, 2001 by the Honourable Judge McDonald dismissing the charges and denying costs to the Crown because they had proceeded in criminal court for a matter that was essentially civil in nature. He added this:
It looked like the two governments ganged upon against Mr. Manos [sic] and that is an appearance problem which should be, at all times, avoided. In my view the provincial crown must always be vigilant to avoid any suggestion of being an agent of the federal government and they must research.
He also denied costs to Mr. Manson.
... because of the inability of Mr. Manson to stick to the facts. He consistently wasted the Court's time through the insistence of including irrelevant, opinionated, quasi-political material with the inclusion of self created delusions of conspiracies everywhere in the institutional fabric of this nation not to mention personal attacks upon the crown prosecutor, the crown prosecutor's office, certain department employees, politicians and the judiciary.
[10] The material filed by Ms. Manson discloses no basis upon which I can conclude that the allegations in paragraphs 2, 3 and 8 of the affidavit or the transcript in Exhibit A are relevant to this appeal. Nor am I prepared to infer that the appellants in this case have been prejudiced in any way by the mere fact that Mr. Justice Gibson rendered a decision in a prior proceeding involving Ms. Manson's son. Paragraphs 2, 3 and 8 of the affidavit and the transcript appended as exhibit A will not be admitted as evidence on this appeal.
[11] Paragraphs 4, 5, 6 and 7 of Ms. Manson's affidavit contain allegations to the effect that certain affidavit evidence presented to Mr. Justice Gibson was false. Paragraphs 9 through 29 of the affidavit is a narrative of dealings between the Canada Customs and Revenue Agency and Ms. Manson and her family, some relating to events prior to the proceedings before Mr. Justice Gibson and some relating to subsequent events. These paragraphs of the affidavit consist mainly of argument and should not be admitted as evidence.
[12] In support of the various allegations made by Ms. Manson are documents appended to the affidavit as exhibits B, D, E, F and H, which apparently were obtained after his order was rendered (in some cases as a result of an application under the Privacy Act), and Exhibit G, which consists of photocopies of articles from a magazine or newspaper. Exhibit G is clearly irrelevant to the appeal and will not be admitted as evidence.
[13] As for the documents in the remaining exhibits, I have no basis for determining whether or not this information could with due diligence have been obtained before the proceedings before Mr. Justice Gibson. I can see no relevance to the documents that appear to be Ms. Manson's own notes or summaries. I must say also that it is not clear to me that the remaining material, on its face, is capable of proving any of Ms. Manson's allegations of improper conduct or bad faith on the part of the Canada Customs and Revenue Agency.
[14] However, the matter is sufficiently ambiguous that, in my view, the interests of justice would best be served by permitting Ms. Manson to refer in argument to the documents in exhibits B, D, E and F that are copies of documents from the files of the Canada Customs and Revenue Agency. At the same time, I must note that some of those documents may have been before Mr. Justice Gibson when he rendered the decision under appeal; those documents may be included in the appeal book even if they are not the subject of an order permitting them to be admitted as evidence on appeal.
[15] I conclude that such of the following documents as were not before Mr. Justice Gibson when he rendered the decision under appeal may be admitted as evidence on appeal (note that the exhibits contain some duplication which I have attempted to eliminate):
(a) the following pages from Exhibit B appended to Ms. Manson's affidavit sworn July 17, 2001:
(1) the pages showing the following page references at the bottom right hand corner: 19, 21, 23, 96, 98;
(2) letter dated March 26, 2001 from Suzanne Lafrance, Director, Access to Information and Privacy Division, Canada Customs and Revenue Agency and the three following pages indicating exemptions pursuant to section 27 of the Privacy Act;
(3) letter dated August 6, 1998 from Mike Bartram , Collection Contact Officer, Canada Customs and Revenue Agency, showing the following page references at the bottom right hand corner: 24, 25;
(4) the pages showing the following page references at the bottom right hand corner: 22, 101, 114, 28, 130, 132, 20, 18, 17, 16, 15, 6, 4, 3, 29, 37, 38, 39, 40, 41, 42, 43, 55, 44, 45, 46, 47, 52, 56, 62, 65, 67, 83, 145, 146, 147, 148, 149, 150, 227;
(5) letter dated April 10, 2001 from Colleen Heikkila, Appeals Officer, Canada Customs and Revenue Agency;
(6) letter dated April 6, 2001 from Paul Cadieux, Manager, Access to Information and Privacy Division, Canada Customs and Revenue Agency with the pages showing the following page references at the bottom right hand corner: 24, 23, 22, 16, 11, 10, 7, 6, 5, 4, 1;
(b) the pages from Exhibit D appended to Ms. Manson's affidavit sworn July 17, 2001 showing the following page references at the bottom right hand corner: 133, 134, 135;
(c) Exhibit E appended to Ms. Manson's affidavit sworn July 17, 2001 (letter dated May 3, 2001 from C. Heikkila, Appeals Division, Canada Customs and Revenue Agency);
(d) the pages from Exhibit F appended to Ms. Manson's affidavit sworn July 17, 2001 showing the following page references at the bottom right hand corner: 138, 139; and
(e) the pages from the supplementary material filed by Ms. Manson on July 19, 2001 showing the following page references at the bottom right hand corner: 64, 61, 60, 59, 48.
[16] I must now attempt to determine what should be included in the appeal book. In that regard, the problem is that the material in Ms. Manson's motion provides me very little basis on which I can determine what documents might be candidates for inclusion. Normally, that would be a basis upon which to dismiss the motion to determine the contents of the appeal book, which could lead to dismissal of this appeal for failure to comply Rule 343.
[17] However, I am reluctant to take that step in this case because it seems to me that Ms. Manson has been preoccupied with the matter of the additional evidence and may have failed to understand the requirements of Rule 343. In the unusual circumstances of this case I am prepared to conclude on a provisional basis only that the appeal book should include a copy of each of the following:
(a) the notice of appeal,
(b) the order of Mr. Justice Gibson appealed from (as signed and entered),
(c) any written reasons given for his order,
(d) the originating documents in the Trial Division file and any other pleadings or documents in the Trial Division file that define the issues considered by Mr. Justice Gibson,
(e) all documents or exhibits that were before Mr. Justice Gibson when he made the order appealed from,
(f) if the proceedings before Mr. Justice Gibson were recorded, a transcript of those proceedings in a separate volume, and
(g) the documents comprising the new evidence to be admitted on appeal, arranged chronologically to the extent possible, in a separate volume clearly marked "New Evidence on Appeal".
[18] I will defer further consideration of Ms. Manson's motion to determine the contents of the appeal book to permit her time to supplement her motion record in accordance with directions to be issued separately. Those directions will also deal with the matter of the representation of the estate of Hugh A. Manson.
K. Sharlow
J.A.
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