Date:
20030618
Docket:
A-551-01
Citation:
2003 FCA 276
CORAM: DESJARDINS J.A.
NADON
J.A.
PELLETIER
J.A.
BETWEEN:
JAY
BASSILA
Applicant
and
HER
MAJESTY THE QUEEN
Respondent
REASONS
FOR JUDGMENT
(Delivered
from the Bench at Montréal, Quebec,
on June 18, 2003)
PELLETIER
J.A.
[1]
This is an application for judicial review of the decision of Judge
Lamarre of the Tax Court of Canada dated August 24, 2001 in which she dismissed
the applicant’s appeals from the Minister’s reassessment for the taxation years
1990 to 1993. The issue in the appeal is the deductibility of charitable
donations claimed by the applicant with respect to payments to the Ordre
Antonien Libanais des Maronites (the Order).
[2]
The application is based upon two grounds. The applicant says that the
trial Judge erred in accepting hearsay evidence to establish that the Order was
involved in a fraudulent scheme with respect to the issuance of tax receipts
for charitable donations. He also alleges that the trial Judge created a
reasonable apprehension of bias by making certain comments and, as a result,
the rules of natural justice require that a new trial be ordered.
[3]
The trial Judge was governed by subsection 18.15(4) of the Tax Court
of Canada Act, R.S.C 1985 c. T-2, which provides that, in informal
proceedings before the Court, the technical rules of evidence do not apply.
Notwithstanding this, the record indicates that the trial Judge was careful to
indicate that certain statements to which objection was taken would not be
considered as proof of the truth of the contents of the statements.
[4]
Furthermore, the applicant sought and obtained an adjournment to review
the material upon which the respondent intended to rely in order to establish
the fraudulent scheme operated by the Order. When the trial of the matter
resumed, he could have cross-examined the respondent’s investigators as to
their methods and conclusions but did not do so. Had he done
so, any weaknesses in the evidence
may well have been exposed and their effect attenuated.
[5]
We find no error in the trial Judge’s treatment of hearsay evidence.
[6]
The applicant’s second ground is based upon comments by the trial Judge
to the effect that “Je suis obligée de réécouter toute la preuve” and “Je vais
accepter la preuve de la fraude” both of which are said to demonstrate that
the trial Judge had a preconception as to the outcome. The applicant alleges
that this raises a reasonable apprehension of bias.
[7]
As to the first comment, when one reads it in context, it is clear that
the trial Judge is referring to the respondent’s proposal that the evidence in
chief of its witnesses go in by way of written report. When the applicant’s
counsel objected, the trial Judge agreed to hear the evidence from the mouths
of the witnesses. We do not take her comment to mean anything more than that
the trial Judge acknowledged the applicant’s right to have the witnesses
testify in person.
[8]
As for the passage in which the trial Judge says that she “accepts” the
proof of fraud, we believe that the words which follow immediately after the
words relied upon by the applicant make her state of mind clear “Je vais
accepter d’écouter la preuve sur la fraude”, which is exactly what she did.
[9]
We are all agreed that there is nothing in the Record which would lead a
reasonable bystander, fully informed of the circumstances, to conclude that
there were reasonable grounds to believe that the trial Judge was biased.
[10]
In any event, the law is clear that bias must be raised at the first
opportunity. A party who believes that the presiding judge has created a
reasonable apprehension of bias must make that position known at the first
opportunity. One cannot secretly nurse a reasonable apprehension of bias for
the purpose of raising it in the event of an adverse result. On this point see
In re the jurisdiction of a Human rights tribunal, [1986] 1 F.C. 103
(F.C.A.), where the
following appears:
However,
even apart from this express waiver, AECL's whole course ‑ of conduct
before the Tribunal constituted an implied waiver of any assertion of a
reasonable apprehension of bias on the part of the Tribunal. The only
reasonable course of conduct for a party reasonably apprehensive of bias would
be to allege a violation of natural justice at the earliest practicable
opportunity. Here, AECL called witnesses, cross‑examined the witnesses
called by the Commission, made many submissions to the Tribunal, and took
proceedings before both the Trial Division and this Court, all without
challenge to the independence of the Commission. In short, it participated
fully in the hearing, and must therefore be taken impliedly to have waived its
right to object.
[11]
For these reasons, the application for judicial review will be dismissed
with costs.
J.D. Denis Pelletier
J.A.
FEDERAL COURT OF CANADA
APPEAL
DIVISION
SOLICITORS
OF RECORD
DOCKET: A-551-01
STYLE OF CAUSE: JAY
BASSILA
Applicant
and
HER MAJESTY THE QUEEN
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 18, 2003
REASONS FOR JUDGMENT OF THE COURT
(DESJARDINS, NADON, PELLETIER, JJ.A.)
DELIVERED BY: PELLETIER J.A.
DATED: June 18, 2003
APPEARANCES:
|
Angelo Caputo
|
FOR THE
APPLICANT
|
|
Simon-Nicolas
Crépin
|
FOR THE
RESPONDENT
|
SOLICITORS OF RECORD:
|
Cavaliere & Caputo
Westmount (Québec)
|
FOR THE
APPLICANT
|
|
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa,
Ontario
|
FOR THE
RESPONDENT
|
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