Docket: 2011-1497(GST)G
BETWEEN:
ROANEX HOMES LTD.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
|
Counsel for the Appellant:
|
Gordon
Beck
|
|
Counsel for the Respondent:
|
Gregory Perlinski
|
____________________________________________________________________
ORDER
Upon reading the motion dated
January 19, 2012, filed on behalf of the Respondent, seeking an Order:
a)
compelling the
Appellant to comply with the Court’s Order of December 2, 2011 to amend its
Amended Notice of Appeal to bring it into compliance with Rule 48, with costs
to the Respondent; and
b)
granting the Respondent
60 days from the date of service of the Amended Amended Notice of Appeal to
file a Reply to the Amended Amended Notice of Appeal;
And upon consideration of the
Appellant’s submissions and a review of the Amended Notice of Appeal;
IT IS ORDERED that the motion
is allowed. The Appellant shall serve and file an Amended Amended Notice of
Appeal on or before April 30, 2012. The Respondent shall serve and file a Reply
to the Amended Amended Notice of Appeal within 60 days of service. Costs of
this motion to the Respondent in any event of the cause.
Signed at Ottawa, Canada, this 28th
day of March 2012.
“V.A. Miller”
Citation: 2012TCC98
Date: 20120328
Docket: 2011-1497(GST)G
BETWEEN:
ROANEX HOMES LTD.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
V.A. Miller J.
[1]
This motion was brought
by the Respondent for:
a)
An Order to compel the
Appellant to amend its Amended Notice of Appeal so that it complies with Rule
48 of the Tax Court of Canada Rules (General Procedure);
b)
An Order granting the
Respondent 60 days from the date of service of the Amended Amended Notice of
Appeal to file a Reply to the Amended Amended Notice of Appeal; and,
c)
An Order for costs to
the Respondent.
[2]
This is the second time
that the Respondent has brought a motion to compel the Appellant to amend its
notice of appeal.
[3]
The history of this
appeal is that the Appellant filed its Notice of Appeal with the Court on May
2, 2011. The appeal was filed under the informal procedure. The Minister of
National Revenue (the “Minister”) was served with the Notice of Appeal on May
19, 2011 and the Reply to the notice of appeal was filed on July 15, 2011.
[4]
On July 14, 2011, the
Respondent brought a motion to have the Tax Court of Canada Rules (General
Procedure) apply to this appeal. The affidavit evidence filed with the
motion disclosed that the amount in dispute in this appeal is $555,801.67 in
net tax, plus interest and penalties. Because the motion was brought within
sixty days after the Minister was served with the Notice of Appeal, the motion
was granted in accordance with subsection 18.3002(2) of the Tax Court of
Canada Act and an Order granting the motion was issued on September 2,
2011.
[5]
On November 7, 2011,
the Respondent brought a motion for an Order to compel the Appellant to amend
its Notice of Appeal so that it complied with Rule 48 of Tax Court of Canada
Rules (General Procedure). That motion was granted and the Court issued an
Order dated December 2, 2011. The Appellant filed an Amended Notice of Appeal
on December 16, 2011.
[6]
On a review of the
Amended Notice of Appeal, I conclude that it does not comply with Rule
48. The only amendment which the Appellant made to its Notice of Appeal was to
add the headings specified in Form 21(1)(a), an issue and the statutory
provisions upon which it relied. In other words, it complied with the form
given in Rule 48 but it did not comply with the substance of that Rule.
[7]
The rule of pleadings
was discussed by Bowie J. in Zelinski v. R., 2002 D.T.C. 1204 (TCC) at
paragraphs 4 and 5:
[4] The
purpose of pleadings is to define the issues in dispute between the parties for
the purposes of production, discovery and trial. What is required of a party
pleading is to set forth a concise statement of the material facts upon which
she relies. Material facts are those facts which, if established at the trial,
will tend to show that the party pleading is entitled to the relief sought.
(emphasis added) Amendments to pleadings should generally be permitted, so long
as that can be done without causing prejudice to the opposing party that cannot
be compensated by an award of costs or other terms, as the purpose of the Rules
is to ensure, so far as possible, a fair trial of the real issues in dispute
between the parties.
[5] The applicable principle is
stated in Holmsted and Watson:
This is the
rule of pleading: all of the other pleading rules are essentially corollaries
or qualifications to this basic rule that the pleader must state the material
facts relied upon for his or her claim or defence. The rule involves four
separate elements: (1) every pleading must state facts, not mere conclusions of
law; (2) it must state material facts and not include facts which are
immaterial; (3) it must state facts and not the evidence by which they are to
be proved; (4) it must state facts concisely in a summary form.
[8]
In the present Amended Notice of
Appeal, the facts pled by the Appellant are vague and imprecise.
[9]
The only issue raised by the
Appellant in the Amended Notice of Appeal is “whether the Minister erred in
issuing the reassessment”. This issue does not engage the details of the
reassessment. The Appellant does not dispute the correctness or the quantum of
the net tax reassessed by the Minister.
[10]
For the above reasons, I allow the
Respondent’s motion and order that the Appellant file an Amended Amended Notice
of Appeal which contains a precise statement of the material facts on which it
intends to rely and all the issues it intends to raise at the hearing of this
appeal.
[11]
The Respondent is awarded its
costs for this motion in any event of the cause.
Signed at Ottawa, Canada, this 28th day of March 2012.
“V.A. Miller”
CITATION: 2012TCC98
COURT FILE NO.: 2011-1497(GST)G
STYLE OF CAUSE: ROANEX HOMES LTD. AND
THE
QUEEN
PLACE OF HEARING: By written submission in Ottawa,
Ontario
REASONS FOR ORDER
BY: The Honourable Justice Valerie Miller
DATE OF ORDER: March 28, 2012
|
Counsel for the
Appellant:
|
Gordon Beck
|
|
Counsel for the
Respondent:
|
Gregory Perlinski
|
COUNSEL OF RECORD:
For the Appellant:
Name: Gordon Beck
Firm: Henning
Byrne Barristers and Solicitors
For the
Respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa,
Canada
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