Date: 20070517
Docket: A-649-05
Citation: 2007 FCA 196
CORAM: LÉTOURNEAU
J.A.
NOËL
J.A.
PELLETIER
J.A.
BETWEEN:
MICHELINE
BRUNET
Appellant
and
HER MAJESTY
THE QUEEN
Respondent
REASONS FOR JUDGMENT
BY THE COURT
[1]
We have
before us an appeal from a decision of a judge of the Tax Court of Canada
dismissing the appellant’s appeal for two reasons.
[2]
First, the
judge said that, in his opinion, the Court did not have jurisdiction to amend
the assessments made for the 1993 to 2000 taxation years because the appellant
had not filed a notice of objection as required under section 169 of the Income
Tax Act (ITA). We find no reviewable error in this decision.
[3]
With
regard to the 2001 and 2002 taxation years, the judge found that the Minister
was justified in disallowing the deduction of the expenses claimed by the
appellant in computing her income because the business proposed by the
appellant and her spouse had simply not started up, according to the admission
of the appellant’s spouse, who designed the project. Consequently, there was no
source of income.
[4]
Moreover,
the judge reasoned that, even if the business had started up, a number of the
expenses claimed were capital in nature.
[5]
Once
again, the appellant’s written representations, and the representations made
orally at the hearing by her spouse, have not convinced us that the judge’s
findings contain errors of law or of mixed fact and law that warrant our
intervention.
[6]
However,
at the hearing, the appellant stressed the fact that, despite repeated
requests, unconditionally supported by the respondent’s counsel, she was
refused a copy of the reasons for judgment of the Tax Court of Canada rendered
orally at the hearing. Instead, she received the reasons for judgment signed
almost seven months later, which are intended to be the reasons for judgment
delivered orally at the hearing of November 23, 2005, but which have been
[TRANSLATION] “amended for greater clarity and precision”.
[7]
She alleges
herself to be aggrieved by these reasons which, she says, do not correspond to
those given at the hearing in which, again according to her, the judge granted
her certain deductions. The reasons seem to have been amended and improved to
her detriment.
[8]
This
refusal to remit a copy of the reasons for judgment rendered orally at the
hearing is simply unacceptable. Aside from the feelings of injustice and
mistrust it engenders in the taxpayer, it prevents the Court of Appeal from
exercising its power of review because it cannot verify the merits of the
appellant’s allegations and the scope of the amendments made seven months later
to the judgment already rendered. The reasons given at the hearing are the
reasons for judgment and the parties are entitled to receive a copy of the
complete transcript upon request.
[9]
In Breslaw
v. Canada, 2005 FCA 355, our Court considered what appears to be the
practice occasionally adopted by the Tax Court of Canada of amending reasons
given orally at the hearing. In this case, our Court recognized the right to
edit the reasons delivered at the hearing for grammar and style, but not the
right to modify their substance. At paragraphs 24 and 25, Mr. Justice Pelletier
wrote the following:
[24]
The difficulty arises when the edited version of the oral reasons does not
accord with the original reasons, as recorded in the transcript. While an
appeal is taken from the judgment of the Court and not from its reasons, the
parties nonetheless rely upon the Court's reasons to frame their appeal. As a
result, substantive differences between the reasons given in open court, and
the edited version of those reasons are to be discouraged. A judge is entitled
to edit his reasons for grammar and style so that they read correctly and
fluently. But the addition of topics not raised at the time the oral reasons
were delivered, or the subtraction of topics which were, goes beyond mere
editing for grammar and style. One can readily appreciate that a judge
reviewing his oral reasons after the fact may well feel that they are not the
best statement of his reasoning process. But those are the reasons which were
given to the parties, and it is unfair to them to modify their substance after
the fact.
[25]
This is all the more true where the notice of
appeal has been filed before the edited version of the reasons is released. A
litigant who sees matters raised for the first time in the edited version of
the oral reasons may well wonder whether the reasons are a response to the
notice of appeal.
[10]
In
response to the appellant’s unsuccessful requests to receive a copy of the
complete transcript of the reasons given orally at the hearing, the clerk of
the Tax Court of Canada provided the following explanation in a letter dated
July 25, 2006:
[TRANSLATION]
Dear Ms. Brunet,
I am writing further to
your fax of July 6, 2006.
Please be advised that, in
accordance with its policy, the Tax Court of Canada provides only the
certified transcript of the reasons given orally at the hearing.
All the reasons given
orally at the hearing are sent to the presiding judge for review and
certification. In this way, the judge may revise and correct clerical errors
before the reasons are given to the parties.
Our contracts with the
court reporting firm stipulate that the transcripts requested must be remitted
to the Court.
(Emphasis added.)
[11]
Two
important facts emerge from this letter.
[12]
First, the
appellant’s request was refused because the reasons were sent to the judge
[TRANSLATION] “for review and certification”. It is not the judge’s
responsibility to certify the transcript of the reasons given at the hearing.
As in the case of witness depositions (see, for example, article 327 of the Code
of Civil Procedure), it is the court reporter’s responsibility to certify,
in accordance with the law, the transcript of the recording tapes of the
hearing. That is what the court reporter, Jean Larose, did in this case, with the
exception however of the reasons for judgment rendered at the hearing which
were unjustifiably omitted from the transcript and therefore not included in
his certification.
[14]
Even if we
do not believe it is necessary to make it clear, we will do so so that there is
no ambiguity. If the situation in this case should reoccur, our Court, which is
deprived in part of the power to effectively exercise its appellate
jurisdiction, will not hesitate to intervene.
[15]
The appeal
will be dismissed, but without costs in the circumstances.
“Gilles Létourneau”
“Marc Noël”
“J.D. Denis Pelletier”
Certified
true translation
Susan
Deichert, LLB
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