Date: 20050302
Docket: A-685-04
Citation: 2005FCA82
Present: EVANS J.A.
BETWEEN:
MARK W. BORMANN
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on March 3, 2005.
REASONS FOR ORDER BY: EVANS J.A.
Date: 20050302
Docket: A-685-04
Citation: 2005FCA82
Present: EVANS J.A.
BETWEEN:
MARK W. BORMANN
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
EVANS J.A.
[1] I have before me a motion in writing under rule 369 of the Federal Court Rules, 1998, by Mark W. Bormann. He seeks leave to file new evidence in support of his appeal from an order of the Tax Court of Canada, dated September 17, 2004. In that order, the Court quashed Mr. Bormann's appeals from the assessments made under the Income Tax Act of his tax liability for the taxation years 1992-1998 inclusive, and 2001 and 2002.
[2] The Tax Court's order was based on paragraph 58(3)(b) of the Tax Court of Canada Rules (General Procedure), which empowers the Court to dismiss an appeal because of a failure to meet a condition precedent to the institution of an appeal. I infer from Mr. Bormann's notice of appeal that he had not filed a written objection to the assessments within the statutorily prescribed time.
[3] Mr. Bormann is requesting leave to admit what would appear to be extensive documentation which was not before the Tax Court. The documents seem to relate to, among other things, the personal history of Mr. Bormann and his family, correspondence with Revenue Canada, his residence in Germany in the years 1997-2002, and his tax assessments in those years by the German tax authorities.
[4] The function of an appellate court is to determine if the judge below erred in law, or made a palpable or overriding error of fact. Whether the trial judge erred is normally determined on the basis of the material that was before the judge, because an appeal is not an opportunity for the appellant to obtain a retrial of the case.
[5] However, in very limited circumstances an appellate court may admit evidence in support of an appeal that was not before the trial judge, namely, when the evidence was not previously discoverable through reasonable diligence and, if admitted, would be practically conclusive of the appeal: Amchem Products Inc. v. British Columbia (Workers' Compensation Board) (1992), 192 N.R. 390 at para. 6. Both of these conditions must be satisfied before new evidence may be admitted.
[6] On the basis of the submissions made by Mr. Bormann, I am not satisfied that the evidence which he seeks leave to have admitted satisfies either limb of the Amchem test.
[7] For these reasons, the motion will be dismissed.
"John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-685-04
STYLE OF CAUSE: MARK W. BORMANN v. HER MAJESTY THE QUEEN
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: EVANS J.A.
DATED: March 2, 2005
WRITTEN REPRESENTATIONS BY:
|
Mark W. Bormann
|
ON HIS OWN BEHALF
|
|
Steven D. Leckie
|
FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Mark W. Bormann
Renfrew, Ontario
|
APPELLANT ON HIS OWN BEHALF
|
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario
|
FOR THE RESPONDENT
|
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