Date: 20040219
Docket: A-542-03
Citation: 2004 FCA 72
Present: PELLETIER J.A.
BETWEEN:
LENCY TURNER
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Written motion decided without appearance by the parties.
Order delivered at Ottawa, Ontario, February 19, 2004.
REASONS FOR ORDER BY: PELLETIER J.A.
Date: 20040219
Docket: A-542-03
Citation: 2004 FCA 72
Present: PELLETIER J.A.
BETWEEN:
LENCY TURNER
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
PELLETIER J.A.
[1] The appellant has filed a motion supposedly based on rule 343 of the Federal Court Rules, 1998, which deals with the content of the Appeal Book, but, in fact, the recourse that she invoked is based on rule 351, i.e. leave to present new evidence in support of her appeal.
[2] The appellant's motion shows that she has a misconception about the role of an appeal court. An appeal is not a new trial which enables a party to resubmit its evidence in light of the reasons of the court below. As a general rule, an appeal court only addresses evidence that was before the trial court. The exception provided in rule 351 is very narrow, precisely for the reasons stated in Public School Boards Association of Alberta v. Alberta (A.G.), [2000] 1 S.C.R. 44 at paragraph 10, the text of which is reproduced at paragraph 10 of the respondent's submissions. This is why the appeal courts refuse to accept new evidence unless the evidence could not have been filed before the trial court by exercising due diligence, and when, further, the evidence could have a determinative effect on an issue.
[3] In this case, neither of these conditions appears to be present. The appellant appears simply to want to contradict the findings of the judge of the Tax Court of Canada by filing evidence that was already available to her but that she did not think appropriate to file during her trial.
[4] For these reasons, the appellant's motion is dismissed. The content of the Appeal Book is limited to the proceedings and evidence that were available to the trial judge.
"J.D. DENIS PELLETIER"
J.A.
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-542-03
STYLE OF CAUSE: LENCY TURNER
Appellant
and
HER MAJESTY THE QUEEN
Respondent
WRITTEN MOTION DECIDED WITHOUT APPEARANCE BY THE PARTIES
REASONS FOR ORDER AND ORDER BY: PELLETIER J.A.
DATE OF REASONS FOR ORDER AND ORDER: February 19, 2004
WRITTEN REPRESENTATIONS BY:
Lency Turner Representing herself
Martin Gentile For the respondent
SOLICITORS OF RECORD:
Lency Turner Representing herself
Chicoutimi, Quebec
Morris Rosenberg
Deputy Attorney General of Canada For the respondent
Montréal, Quebec
Date: 20040219
Docket: A-542-03
OTTAWA, ONTARIO, FEBRUARY 19, 2004
Present: PELLETIER J.A.
BETWEEN:
LENCY TURNER
Appellant
and
HER MAJESTY THE QUEEN
Respondent
ORDER
The appellant's motion is dismissed. The content of the Appeal Book is limited to the proceedings and evidence that were available to the trial judge.
"J.D. DENIS PELLETIER"
J.A.
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
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