Date: 20080929
Docket: A-346-07
Citation: 2008 FCA
289
CORAM: LÉTOURNEAU J.A.
NADON J.A.
PELLETIER J.A.
BETWEEN:
LES ENTREPRISES M.A.J. INC., a
legally incorporated entity
having its head office at 1433 Talbot Street, Saint-Félicien,
province of Quebec, G8K 1X7
Appellant
and
HER
MAJESTY THE QUEEN
Respondent
Hearing held at Québec,
Quebec, on September 29, 2008.
Judgment
delivered from the bench at Québec, Quebec,
on September 29, 2008.
Date: 20080929
Docket: A-346-07
Citation: 2008 FCA 289
CORAM: LÉTOURNEAU
J.A.
NADON
J.A.
PELLETIER
J.A.
BETWEEN:
LES ENTREPRISES M.A.J. INC., a legally
incorporated entity
having its head office at 1433 Talbot Street, Saint-Félicien,
province of Quebec, G8K 1X7
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the bench at Québec, Quebec, on September 29, 2008)
PELLETIER J.A.
[1]
We were not satisfied that the motion to adduce
fresh evidence should be granted.
[2]
This is not a question of filing fresh evidence
on a specific and determinative issue during the hearing of an appeal; rather,
we have in fact before us an application for a trial de novo. The
appellant is effectively asking us to set aside the judgment of the Tax Court
of Canada and to retry the case based on affidavits that it wishes to file and
on the trial transcript. Doing so would run counter to any notion of judicial
deference regarding the trial judge’s findings of fact and credibility. A court
of appeal may not, even must not, sit as a trial court on application by a
party who is dissatisfied with the outcome of the trial. For these reasons, the
motion will be dismissed without costs.
[3]
As for the appeal on the merits, we are of the
opinion that there is no basis for intervening.
[4]
Regarding the judge’s refusal to grant an
adjournment to the appellant, the latter has known since May 11, 2007, that the Tax Court of Canada had
denied its request for an adjournment of the hearing scheduled for May 28. There
was nothing unfair in the fact that, on the morning of the hearing, Justice
Paris denied it what the Court had already refused to grant two weeks earlier.
There was no breach of procedural fairness.
[5]
We were not satisfied that there is any basis
for interfering with the finding of the judge of the Tax Court of Canada that
the appellant failed to discharge its burden. The judge did not find the
appellant’s testimony to be very credible for the reasons he provided from the
bench.
[6]
It is trite law that,
absent a palpable and overriding error, a court of appeal must defer to
the findings of fact of the trial court. Moreover, the findings of the judge of
the Tax Court of Canada, both in matters of credibility and fact, are entirely
justified in light of the evidence filed at the trial. For these reasons, the
appeal will be dismissed with costs.
“Denis
Pelletier”
Certified
true translation
Tu-Quynh
Trinh
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-346-07
STYLE OF CAUSE: LES
ENTREPRISES M.A.J. INC., a legally incorporated entity having its head office
at 1433 Talbot
Street, Saint‑Félicien,
province of Quebec, G8K 1X7 v. HER MAJESTY THE
QUEEN
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: September
29, 2008
REASONS FOR JUDGMENT OF LÉTOURNEAU J.A.
THE COURT BY: NADON J.A.
PELLETIER J.A.
DELIVERED FROM THE BENCH BY: PELLETIER J.A.
APPEARANCES:
|
Martin Dallaire
|
FOR
THE APPELLANT
|
|
Roberto Clocchiatti
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD
|
|
|
|
Caïn, Lamarre, Casgrain, Wells
Saint-Félicien, Quebec
|
FOR THE APPELLANT
|
|
John
H. Sims, Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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