Brampton Vee World Motors Limited v. The Queen, 2005 TCC 34 (Informal Procedure)

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Agent for the Appellant: Khalil Hasan

Counsel for the Respondent: LorraineEdinboro

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REASONS FOR ORDER

(Delivered orally from the Bench at

Toronto, Ontario, on November 5, 2004)

McArthur J.

[1]      This is a motion by the Respondent for an Order to prohibit the Appellant's representative, Mr. Khalil Hasan, from acting as an expert witness, excluding the purported expert report completed by Mr. Hasan as evidence at trial and to prohibit him from acting as a witness at the trial.

[2]      The Respondent states that it is improper for Mr. Hasan to act as a representative and as a witness, he is not objective as he became an advocate for the Appellant when he filed the Notice of Objection on its behalf in April 2003, and continues to act as the Appellant's representative in this appeal. Further, the purported expert report is in itself inappropriate as it contains more opinions with respect to law than matters of expert accounting evidence. The issue in this case is with respect to a determination of fact and, therefore, the trial judge is equipped to determine the outcome of the appeal.

[3]      The Appellant has appealed from an assessment of the Minister of National Revenue whereby the net worth method was implemented to assess the Appellant for unremitted goods and services tax of $17,317 and $14,715 in interest and penalties for the period January 1, 1994 to December 31, 1998. Mr. Hasan, who has represented the Appellant, I believe for several years with regard to this assessment under appeal, completed a report with attachments containing over ten pages. His opening paragraph to the Appellant reads as follows:

In accordance with instructions I have prepared an Expert Report in respect of the Notice of (Re)Assessment No. 05DP0015671, dated January 23, 2003, issued by Revenue Canada to the subject corporation for an amount of $32,033.53 which covers the Goods and Services Tax (the GST) for the period January 1, 1994 to December 31, 1998. I have also agreed to appear as an Expert Witness in the Tax Court of Canada, the Federal Court of Appeal, and the Supreme Court of Canada for the report. Copies of the report will be served to the Respondent and filed with the Tax Court of Canada shortly.

Mr. Hasan's letterhead states that he has a Bachelor of Commerce and is a Chartered Accountant with his practice restricted to taxation. Having read his curriculum vitae and having heard him in open court, he appears highly qualified in his accounting field.

[4]      The Respondent's motion arises from a direction of Margeson J. issued after a pre-hearing conference which reads in part:

The Respondent is directed to bring a motion for an order that Khalil Hasan, the Appellant's agent, may not represent the Appellant at the hearing of this appeal and give evidence as an expert or otherwise testify in the proceeding or file an expert's report completed by him."

I will first deal with the motion to prohibit the Appellant's representative to act as an expert witness. I agree with the Respondent's position and there is an abundance of case law in support. I need not look further than Squamish Indian Band v. Canada, [1998] F.C.J. No. 330 (T.D.) where Simpson J. stated:

7.          As well, a prohibition against argument being presented through an expert witness is well established. In Yewdale v. Insurance Corp. of British Columbia ... Newbury J ... expressed the law in the following terms:

Given the special privilege accorded to experts to testify as to their opinions they must not become advocates. They must express their opinions as opinions and must leave for the court the required conclusions of law. In theory at least, the court 'knows the law' -- in practice it has the responsibility of finding and applying it. Thus the expert should express his or her opinion in an objective and impartial manner, and must not present argument in the guise of expert evidence."

She goes on to quote McColl J. in SurreyCredit Union v. Willson, 45 B.C.L.R. (2d) 310 (B.C.S.C.) where it is stated:

Expert opinions will be rendered inadmissible when they are nothing more than the reworking of the argument of counsel participating in the case. Where an argument clothed in the guise of an expert's opinion is tendered it will be rejected for what it is.

I find that both of these quotes apply to the present situation. It is common sense that Mr. Hasan's serious involvement in obtaining success for the Appellant disqualifies him from providing expert evidence. He does not have the objectivity required. His expert evidence can be offered in no way as evidence but I see no problem in it or parts of it being included in his closing argument if he chooses to do so, but dependent of course on the trial judge's decision.

[5]      The Respondent's counsel requested an Order restricting the evidence of Mr. Hasan to exclude accounting and legal opinions. This is the prerogative of the trial judge and it would make little sense for me to become involved. The trial judge is in a much better position to sort out the relevant from the irrelevant. It would be, of course, preferable for the Appellant to be represented by counsel who would examine Mr. Hasan in chief and in re-direct examination after the cross-examination. I believe the Appellant cannot afford this luxury and Mr. Hasan wishes to assume both roles.

[6]      Generally, it is the custom of this Court to permit the Appellant's representative to give evidence in Informal Procedure appeals and I find no extraordinary circumstances to interfere with that procedure. Therefore, an Order shall be issued prohibiting Mr. Hasan from acting as an expert witness in this action. The report prepared by Mr. Hasan and dated September 15, 2004 is to be excluded from evidence at the hearing of this appeal. However, Mr. Hasan is not prohibited from acting as a witness during the hearing and I make no order as to costs given the divided success in this motion.

Signed at Ottawa, Canada, this 7th day of January, 2005.

McArthur J.