Clive Tregaskiss Investment Inc. v. The Queen, 2004 TCC 713

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Counsel for the Appellant: Gino Morga, Q.C.

Counsel for the Respondent: Michael Ezri

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REASONS FOR ORDER

(Delivered orally from the Bench on

August 23, 2004, at Windsor, Ontario)

Sarchuk J.

[1]      I am inclined to deny the motion, counsel. There are several facts that lead me to that conclusion; first of all there is a very obvious breach of the relevant Rules of the Tax Court of Canada (General Procedure)[1] that stands by itself. Second, notice was given to counsel regarding his failure to comply with the foregoing Rules at a point in time when the matter might have been remedied, but for the reasons advanced it was not. It strikes me when counsel is away on a holiday that surely there should be some arrangement made to protect the client by having somebody check the mail and attend to what may have to be done, or at the very least, communicate with counsel.

[2]      Third, and this is the item that concerns me the most. As a trial lawyer for many, many years I am aware that a facet of preparing for trial, an aspect of it is that at a particular point in time you do a final review -- with your witness -- go over the evidence, analyze it and get ready for the final step, the trial. Counsel for the Respondent has indicated that although he had the two appraisal reports, I gather, that because there was no response from your end, inadvertent though it may have been, a problem was created with regard to the preparation of the one witness that he would be calling, not only in-chief but also for the purpose of giving rebuttal evidence as needed.

[3]      If both reports had been filed pursuant to Rule 145, then counsel for the Respondent would have been briefing the witness in respect of both. In these circumstances, it is understandable that a dilemma was created and led to the procedure, the motion, that we are dealing with at this particular point in time. The ability to be able to deal with the evidence by preparing your own witnesses and for the purpose of cross-examination is very important. Since the appraisal documents were not filed on time and, while there is no direct evidence to establish that one or the other would not be tendered by counsel for the Appellant, it appears to have created an assumption that might be the case and now here we are.

[4]      In my view, to allow the reports to be filed at the present time, in these circumstances, would prejudice the Respondent's ability to cross-examine properly and for that reason I am denying the motion.

Signed at Ottawa, Canada, this 26 day of October, 2004.

Sarchuk J.