Date: 20030807
Docket: A-179-03
Citation: 2003FCA317
Present: SHARLOW J.A.
BETWEEN:
PAULINE CHARLOTTE RAY
Applicant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1] The applicant has commenced an application for judicial review of a Tax Court decision dismissing her income tax appeal for 1998 and 1999. On May 26, 2003, she filed an affidavit in support of her application. Before me is a motion by the Crown to strike out the affidavit, or alternatively parts of the affidavit, on the basis that it is an attempt to put evidence before this Court that was not before the Tax Court, and also because it contains opinion and argument.
[2] The applicant has submitted material in response to the Crown's motion. I have directed that this material be accepted for filing as a response to the Crown's motion even though it is not in proper form. The applicant has also requested that I consider an oral hearing for this motion. I do not believe an oral hearing is necessary.
New evidence in the affidavit
[3] In this application for judicial review, the task of this Court will be to determine whether the Tax Court Judge erred in deciding as he did, based on the documents and oral evidence presented to him.
[4] The applicant appears to be arguing that the Tax Court Judge erred in failing to take into account certain facts. That is an argument that is commonly made. However, in most cases, it is an argument that cannot succeed unless the Tax Court Judge was presented with evidence of the particular facts that are alleged to have been disregarded.
[5] In an application for judicial review, this Court generally cannot take into account evidence that was not before the Tax Court Judge. This general prohibition against new evidence in an application for judicial review is justified by the presumption that if relevant evidence exists but was not presented at the Tax Court hearing, no error can be attributed to the Tax Court Judge. Except in rare situations, the failure to present relevant evidence to the Tax Court Judge is an error by the litigant. That is not the kind of error that justifies reversing a decision on judicial review, even if the litigant did not understand the process in the Tax Court, or failed to appreciate the significance of particular evidence.
[6] It follows that in most situations, an affidavit submitted in support of an application for judicial review is improper to the extent that it refers to facts or evidence of which the Tax Court Judge was not and could not have been aware.
[7] To this general rule, there are of course exceptions. For example, if there is an allegation that the Tax Court Judge erred in failing to admit evidence, or that the Tax Court Judge failed to conduct a fair hearing, the applicant for judicial review may submit an affidavit setting out the factual basis of that allegation. Such an affidavit necessarily will be evidence that was not before the Tax Court Judge, but that is permitted because in most cases there is no other method by which this Court can be apprised of facts relating to an allegation of a procedural failure.
[8] Here, the Crown is arguing that the applicant's affidavit is improper because it is an attempt to present evidence that was not before the Tax Court Judge. The Crown has provided a copy of the transcript of the proceedings in the Tax Court, and it appears that no documentary evidence was presented in the Tax Court hearing. The entire hearing appears to have been based on the pleadings and the applicant's oral evidence. However, the applicant's affidavit refers to facts that are not in the transcript, and also refers to documents that were not before the Tax Court Judge.
[9] If I understand the affidavit correctly, it appears that the applicant assembled some or all of her affidavit material after the conclusion of the proceedings in the Tax Court. I can discern no explanation as to why it could not have been assembled before those proceedings, so that the Tax Court Judge would have been aware of it.
[10] It may be that the applicant assumed that, because she had provided documents in the past to the Canada Customs and Revenue Agency, the Tax Court Judge could or should have access to those documents prior to the hearing or at the hearing. If so, she was mistaken. A Tax Court Judge generally has only the notice of appeal, the Crown's reply, and other pleadings and documents that are filed formally in the Tax Court. If additional documents are required to assist the Tax Court Judge to understand and decide the issues raised in the tax appeal, one of the parties must present those documents as evidence at the hearing.
[11] I am satisfied that the Crown is correct to object to the portions of the applicant's affidavit that refer to facts and evidence that were not before the Tax Court Judge.
Argument and opinion in the affidavit
[12] An affidavit should contain only statements of fact. In most cases, the affidavit of an applicant in an application for judicial review simply recites the particulars of the hearing: how it was commenced (generally, the pleadings are appended to the affidavit), when and before whom the hearing was conducted, what evidence was submitted orally (a transcript may be appended to the affidavit), what documents were submitted as evidence (copies of the documentary exhibits may be appended), and what arguments were made.
[13] The affidavit submitted in support of an applicationc for judicial review of a Tax Court judgment should not contain statements about why the applicant believes the Tax Court Judge was wrong, or what remedy the applicant should be granted. Those are matters for argument. The place for argument is in the memorandum of fact and law, which should be included in the applicant's record (refer to Rule 309(2)(h) of the Federal Court Rules, 1998).
[14] The Crown says, correctly, that the applicant has included opinion and argument in her affidavit. The affidavit is, to that extent, improper.
Remedy
[15] The Crown has requested that the applicant's affidavit be struck in its entirety. I see no reason why that should not be done. It is very difficult, in the affidavit as filed, to separate improper and proper elements. The motion to strike will be granted. However, as the errors in
the affidavit are most likely the result of the applicant's failure to understand the process, I will permit her additional time to prepare and submit a proper affidavit.
[16] The Crown has sought costs on this motion. The applicant has not responded to the Crown's request for costs. The record discloses no basis for departing from the general rule that costs should be awarded to the successful party. The Crown's motion will be granted with costs.
(s) "K. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-179-03
STYLE OF CAUSE: PAULINE CHARLOTTE RAY and HER MAJESTY THE QUEEN
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER OF THE HONOURABLE MADAME JUSTICE SHARLOW
DATED: August 7, 2003
WRITTEN REPRESENTATIONS:
Mrs. Pauline Charlotte Ray ON HER OWN BEHALF
Calgary, Alberta
Mr. R. Scott McDougall FOR THE RESPONDENT
Department of Justice
SOLICITORS OF RECORD:
Mrs. Pauline Charlotte Ray ON HER OWN BEHALF
Calgary, Alberta
Mr. Morris Rosenberg FOR THE RESPONDENT
Attorney General of Canada
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