Strayer,
J.:
—Counsel
has
asked
that
I
rule
prior
to
trial
with
respect
to
the
joint
request
by
the
plaintiff
and
the
defendant
that
the
evidence
adduced
before
the
Tax
Court
of
Canada
in
this
matter
be
admitted
as
evidence
at
the
trial
of
this
action
by
way
of
filing
a
certified
transcript
of
the
proceedings
before
the
Tax
Court
of
Canada
with
this
Court.
Because
of
the
unusual
nature
of
this
request
I
initially
indicated
that
it
should
be
addressed
by
counsel
at
the
opening
of
the
trial.
I
am
assured
by
counsel
for
the
plaintiff,
however,
that
a
ruling
now
is
important
for
the
purpose
of
guiding
counsel
in
preparation
for
trial.
I
am
going
to
grant
the
order
requested
but
will
note
my
concerns
as
to
how
this
“evidence”
is
to
be
used.
It
was
these
concerns
which
I
wished
to
discuss
with
counsel
in
open
court.
Appeals
to
the
Federal
Court
Trial
Division
from
the
Tax
Court
of
Canada
are
trials
de
novo.
This
obliges
the
judge
of
this
Court,
where
facts
are
in
dispute,
to
form
his
own
opinion
as
to
the
credibility
of
the
evidence.
While
therefore
it
may
be
appropriate,
where
both
parties
consent,
to
make
reference
to
the
transcript
of
the
trial
before
the
Tax
Court
of
Canada
as
a
source
of
evidence
of
basic
facts
not
seriously
disputed,
or
on
questions
not
turning
on
credibility
of
the
witnesses,
it
is
not
an
acceptable
way
of
dealing
with
seriously
disputed
issues
including
matters
of
credibility.
The
judge
of
this
Court,
sitting
as
a
fact
finder
and
not
as
an
appellate
judge
in
the
normal
sense
examining
the
record
for
reviewable
error,
must
be
in
the
position
to
assess
the
witnesses
and
to
ask
questions
of
his
own
for
clarification.
These
rights
would
be
denied
him
if
he
is
confined
to
the
transcript
of
proceedings
in
another
court
as
his
source
of
information.
If
the
parties
are
in
agreement
on
introducing
the
transcript
in
evidence,
it
would
have
been
much
better
for
them
to
have
presented
an
agreed
statement
of
facts
based
on
that
transcript.
If
instead
they
are
going
to
rely
on
the
transcript
then
they
should
each
file
with
the
Court
at
least
five
days
before
the
hearing
a
concise
statement
of
the
facts
which
they
respectively
hope
to
establish
from
the
transcript
with
references
to
the
questions
and
answers
on
which
they
intend
to
rely.
But
this
will
not,
of
course,
preclude
the
Court
from
finding
the
evidence
of
disputed
facts
to
be
inadequate
for
the
reasons
referred
to
above.
Order
granted.
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