Date: 20090129
Docket: A-385-08
Citation: 2009 FCA 26
Present: EVANS
J.A.
BETWEEN:
KATHRYN KOSSOW
Applicant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
EVANS J.A.
[1]
This is a
motion by Kathryn Kossow for leave to admit new evidence in support of her
appeal to this Court against an interlocutory order made by Justice Valerie
Miller (Motions Judge) of the Tax Court of Canada, dated July 18, 2008.
[2]
The order
under appeal arises from Ms Kossow’s appeal to the Tax Court against a decision
by the Minister of National Revenue to disallow sums claimed as charitable
donations, which Ms Kossow says that she gave to a gallery to enable it to make
art purchases. The Minister alleges that the donations were part of an
elaborate international scheme. The central dispute between the parties appears
to be over the proper value of the works of art alleged to have been purchased.
[3]
The trial
in the Tax Court was originally set down to start on June 16, 2008, and was
scheduled to last for two weeks. However, it has become bogged down in
procedural disputes concerned, to a large extent, with allegations by Ms Kossow
that the Minister has failed to make full disclosure of the documents in his
possession that are relevant to her appeal. In May 2008, the Motions Judge adjourned
the start of the trial until September 8, 2008, so that she could deal with Ms
Kossow’s interlocutory motion that has given rise to the appeal to this Court and
the present motion to admit fresh evidence in support of it. It is now the end
of January 2009, and a date for the hearing of the interlocutory appeal has not
yet been set.
[4]
As part of
the context of this motion I would also note that there has already been voluminous
disclosure and extensive discovery, both oral and written. In her order of July
18, 2008, which is the subject of the appeal from which the present motion
arises, the Motions Judge refused to order the Minister to produce a third
affidavit of documents, to permit further discovery, and to require certain
questions to be answered properly by the Minister’s nominee. Ms Kossow alleges,
among other things, in her appeal that written interrogatories are inadequate
in this case and that the Motions Judge erred in not ordering further
discovery.
[5]
The new
evidence which Ms Kossow wishes to be admitted in the appeal comprises three
affidavits: one of William Moore, the former director of the art gallery to
which, Ms Kossow says, she made her charitable donations, and two of Michelle Julfs,
an employee of Ms Kossow’s counsel, together with eight exhibits. The whole occupies
200 pages of the Motion Record. Despite the reluctance of appellate courts to burden
the appeal record unduly, Ms Kossow submits that these documents satisfy the
test for admissibility: their content was not reasonably discoverable before
the Motions Judge rendered her decision; the evidence is reliable; and, if
admitted, it would be practically conclusive of the appeal, in the sense that
it likely would have affected the Motions Judge’s decision (BC Tel v.
Seabird Island Indian Band, [2003] 1 F.C.R. 475, 2002 FCA 288, at para.
29). The Minister takes issue with some or all of these assertions with respect
to some or all of the documents that Ms Kossow seeks to have admitted.
[6]
Having
examined the parties’ submissions and the material in question, I am not
persuaded that Ms Kossow has demonstrated that the documents satisfy the fairly
stringent test for admissibility. Nor, on the other hand, am I satisfied that
the documents are clearly inadmissible.
[7]
Anticipating
this conclusion, Ms Kossow argues that I should leave it to the panel hearing
her appeal to decide the issue of admissibility. She submits that, having had
the benefit of an oral hearing and having a greater familiarity with the issues
raised in the appeal, the panel will be in a better position to decide, either
before or after they have heard the appeal, whether the documents should be
admitted: see R. v. Stolar, [1988] 1 S.C.R. 480 at 491-92.
[8]
The Minister,
on the other hand, argues that if, contrary to his principal argument, I do not
simply dismiss Ms Kossow’s motion outright by finding the documents
inadmissible as fresh evidence, the preferable course would be for the Tax
Court to decide whether they should be admitted at the trial. Because of the complexity
of the issues, he says, this Court ought not to make a first decision on
admissibility in the context of an interlocutory appeal. Rather, the Court
should have the benefit of a decision by the Tax Court on their admissibility
at the trial, with the possibility of an appeal to this Court. Indeed, Ms
Kossow has a motion pending before the Tax Court on this very issue, which is
suspended pending this Court’s disposition of the appeal from the Motion Judge’s
order. However, the disadvantage of returning the matter to the Tax Court is,
of course, that it would impose further expense on Ms Kossow and further delay
the start of the trial.
[9]
Having
weighed these considerations, I have concluded that, on balance, the interests
of justice are best served by permitting Ms Kossow, at the start of the hearing
of her appeal, to bring a motion for the admission of the documents that are
the subject of the present motion. In my opinion, having had the benefit of
hearing counsel’s submissions and their answers to questions from the Bench,
the panel will be well placed to make a ruling. In view of the protracted
procedural history of this matter and the missed trial dates, it would not, in
my view, serve the interests of justice to require Ms Kossow, at this stage, to
revive the motion pending before the Tax Court, thus starting up another round
of pre-trial litigation and appeals.
[10]
For these
reasons, I would dismiss Ms Kossow’s motion to admit the new evidence, with leave
to renew it at the start of the hearing of her appeal by a panel of this Court. The costs of the present motion shall be in the cause.
“John M. Evans”
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