Docket: 2006-2996(IT)G
BETWEEN:
THE TORONTO-DOMINION BANK,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
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Parties:
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Counsel for the Appellant:
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Al Meghji
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Counsel for the Respondent:
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Donald G. Gibson
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____________________________________________________________________
ORDER
UPON receiving a letter from counsel for the
Respondent dated October 14, 2009 in which counsel requested that the Court
permit him to prepare and submit a written argument in the above appeal;
AND UPON considering the position adopted by
counsel for the Appellant opposing the request made by counsel for the
Respondent;
AND UPON considering the matter in detail;
IT IS HEREBY ORDERED THAT:
1.
The application by
counsel for the Respondent is allowed on the basis that the trial will be
reopened for the purpose of permitting counsel for the Respondent to file a
written argument.
2.
The written argument of
counsel for the Respondent must not exceed 25 pages in length (letter
size) and the written argument must be filed with the Court within 15 days of
the date of this Order.
3.
Counsel for the Appellant
will be permitted to file a written Reply within 15 days of the date of receipt
of the Respondent’s written argument. The Reply of the Appellant will not
exceed 25 pages (letter size).
4.
The Respondent will pay
$10,000.00 to the Appellant within one month of the date of this Order.
Signed at Vancouver, British Columbia, this 2nd day
of November 2009.
Little
J.
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Citation: 2009 TCC 564
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Date: 20091102
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Docket: 2006-2996(IT)G
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BETWEEN:
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THE TORONTO-DOMINION BANK,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR ORDER
Little J.
[1] The trial of this matter took place in Toronto from October 5, 2009 to October 9, 2009.
[2] On October 9, 2009 I reserved judgment and I have not yet
pronounced judgment.
[3] On October 14, 2009 (two business days after I reserved
judgment), the Court received a letter from counsel for the Respondent.
[4] In his letter, counsel for the Respondent requested the Court’s
permission to file a Memorandum of Fact and Law on behalf of the Respondent.
[5] By letter dated October 15, 2009 counsel for the Appellant
submitted that the Court should refuse the request of the Crown.
[6] The issue of whether a Judge should re-open a trial has been
considered many times by various courts.
[7] In the case of
The British Columbia Assn. of
Optometrists v. Clearbrook Optic Ltd. (c.o.b. United Optical), [1998] B.C.J. No. 2929, Madam Justice Quijano
said:
[3] The threshold question on
this application is whether I should exercise my discretion and grant leave to
re-open, then hear full argument and determine the result.
[4] The
test as to how to exercise my discretion to re-open argument in these
circumstances is set out in Vance v. Vance 34 B.C.L.R. 209, in which
Spencer J. of this court said:
I think
it lies upon the applicant to satisfy me on the balance of probabilities that a
miscarriage of justice would probably occur without the rehearing and
that the evidence or argument he now wishes to present would probably change
the result of the trial. That is not to say that at this stage the applicant
must satisfy me that a change in the result would be inevitable.
(Underlining
added)
[8] In Clayton v. British American Securities Ltd., [1935] 1
D.L.R. 432, MacDonald J.A., speaking for the British Columbia Court of Appeal,
said at page 295:
… It is, I think, a salutary rule to leave unfettered
discretion to the trial judge. He would, of course, discourage unwarranted
attempts to bring forward new evidence available at the trial to disturb the
basis of a judgment delivered, or to permit a litigant after discovering the
effect of a judgment to re-establish a broken-down case with the aid of further
proof. If the power is not exercised sparingly and with the greatest care,
fraud and abuse of the Court’s processes would likely result.
This passage was
cited with approval by the Supreme Court of Canada in 671122 Ontario
Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] S.C.J.
No. 61.
[9] It is to be noted these cases dealt with applications to
re-open after the Judge’s reasons had been released, but before judgment was
formally entered, which is not the case here where I reserved judgment. In any
event, the court decisions emphasize the broad discretion in the trial judge to
decide the matter, after considering all the relevant factors.
[10] I also refer to section 138 of the Tax Court of Canada Rules,
which reads as follows:
138. (1) The judge
may reopen a hearing before judgment has been pronounced for such purposes and
upon such terms as are just.
(2)
The judge may, at any time before judgment, draw the attention of the parties
to any failure to prove some fact or document material to a party's case, or to
any defect in the proceeding, and permit a party to remedy the failure or
defect for such purposes and upon such terms as are just.
[11] It will be noted that Rule 138 expressly permits the Judge to
re-open a hearing before judgment has been pronounced for such purposes and
upon such terms as are just.
[12] In my opinion, this rule contemplates a situation such as the
situation before the Court today and would encompass the granting of the
request of counsel for the Respondent within reasonable parameters in order to
assist the Court in reaching its decision.
[13] I have concluded that it is essential, given the complexities of
the matter before the Court, to grant the request of counsel for the
Respondent.
[14] The trial will be re-opened for the purpose of permitting
counsel for the Respondent to file a written argument.
[15] The written argument of counsel for the Respondent must not
exceed 25 pages in length (letter size) and the written argument must be
filed with the Court within 15 days of the date of this Order.
[16] Counsel for the Appellant will be permitted to file a written
Reply within 15 days of the date of receipt of the Respondent’s written
argument. The Reply of the Appellant will not exceed 25 pages (letter size).
[17] The Respondent will pay $10,000.00 to the Appellant within one
month of the date of this Order.
Signed at Vancouver, British
Columbia, this 2nd day of November 2009.
Little
J.
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