Date: 20020425
Docket: A-501-01
Neutral citation: 2002 FCA 152
CORAM: ISAAC J.A.
SEXTON J.A.
MALONE J.A.
BETWEEN:
GIBRALT CAPITAL CORPORATION
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Vancouver, British Columbia on April 24, 2002
Order delivered from the Bench at Vancouver, British Columbia on April 24, 2002
REASONS FOR JUDGMENT OF THE COURT BY: MALONE J.A.
Date: 20020425
Docket: A-501-01
Neutral citation: 2002 FCA 152
CORAM: ISAAC J.A.
SEXTON J.A.
MALONE J.A.
BETWEEN:
GIBRALT CAPITAL CORPORATION
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia
on April 24, 2002.)
MALONE J.A.
[1] This is an appeal from an interlocutory order of Judge M.A. Mogan, a Judge of the Tax Court of Canada (the "Motions Judge") dated August 29, 2001. The Motions Judge dismissed a motion of Gibralt Capital Corporation (the "appellant") for a declaration that Her Majesty the Queen (the "respondent") was deemed to have admitted the truth of statements in the appellant's Request to Admit, dated March 6, 2001 ( the "Request"). In this appeal, the appellant requests that this Court reverse Judge Mogan's refusal to deem the respondent to have admitted the facts alleged in paragraphs 1 and 2 of the Request. Those facts related to an issue as to whether the Westward Inn had a reasonable expectation of profit prior to 1993.
[2] The appellant did not attempt to have the Request admitted into evidence as a deemed admission before Judge C.H. McArthur, a Judge of the Tax Court of Canada who heard the trial of this action commencing on September 1, 2001. Rather, at trial, the appellant adduced other evidence on the issue as to whether the Westward Inn was operated with a reasonable expectation of profit prior to 1993 and made an argument to that effect.
[3] In our analysis, the appellant could have raised the issue surrounding the Request before McArthur J. or, having elected to argue the issue before Mogan J. and having lost, could have sought an adjournment of the trial in order to appeal the Motion Judge's order relative to the Request. The appellant failed to do either and instead chose to proceed to trial, present its evidence and close its case. McArthur J. then dealt with the reasonable expectation of profit issue on the evidence as presented. In our view it is now too late to appeal the Request to Admit issue, the trial having been completed and judgment having been rendered.
[4] We would dismiss this appeal with costs in any event of the cause.
(Sgd.) "B. Malone"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-501-01
STYLE OF CAUSE: Gibralt Capital Corporation v. HMQ
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: April 24, 2002
REASONS FOR JUDGMENT : MALONE J.A.
CONCURRED IN BY: ISAAC, SEXTON JJ.A.
DATED: April 25, 2002
APPEARANCES:
Joel Nitikman FOR THE APPELLANT
Lynn Burch FOR THE RESPONDENT
SOLICITORS OF RECORD:
Fraser Milner Casgrain FOR THE APPELLANT
Vancouver, BC
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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