Geddes Contracting co. Ltd. v. The Queen, 2004 TCC 541

Docket: 95-978(IT)G

BETWEEN:

GEDDES CONTRACTING CO. LTD.,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

____________________________________________________________________

Motions heard by telephone conference on May 14, 2004

and July 6, 2004, at Ottawa, Ontario

By: The Honourable Justice E.A. Bowie
Appearances:
Counsel for the Appellant:	John W. Bilawich
Counsel for the Respondent:	Robert Carvalho

____________________________________________________________________

ORDER

Upon motions brought by the Appellant for Orders permitting the reopening of the trial herein, and for such further ancillary relief as may be required;

And upon reading the affidavits numbered 2, 3 and 4 of Gordon Geddes sworn on the May 7, 2004, May 12, 2004 and June 2, 2004, respectively;

And upon hearing the submissions made by counsel for both parties;

IT IS HEREBY ORDERED THAT:

1.        The motions are allowed on the basis that the trial will be reopened for the sole purpose of adding the documents enumerated in the Schedule hereto to the trial record as Exhibits A-5 to A-30. Each party may file brief written submissions in respect of these Exhibits within 45 days of the date of this Order; and

2.        The costs of these motions will be in the cause.

Signed at Ottawa, Canada, this 4th day of August, 2004.

"E.A. Bowie"

Bowie J.

Citation: 2004TCC541

Date: 20040804

Docket: 95-978(IT)G

BETWEEN:

GEDDES CONTRACTING CO. LTD.,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR ORDER

Bowie J.

[1]      The trial of this matter took place in March 2003, at which time I reserved judgment. Almost immediately thereafter, the Appellant brought a motion to reopen the trial to admit additional documentary evidence that had not been available at the time of the trial. I allowed that motion and admitted an additional exhibit.[1] Before I could deliver judgment in the appeals, the Appellant moved again to reopen the trial, this time to raise the argument that one of the years under appeal was not open for the Minister to reassess as it was statute-barred. That motion was inspired by the decision of Bell J. in Agazarian v. The Queen.[2] Mr. Agazarian is a member of the same partnership as the Appellant in this case. On the hearing of that motion, it was agreed to by counsel that my decision on the motion should await the decision of the Federal Court of Appeal in the appeal from Bell J.'s decision that was scheduled to be heard in the near future. Since then the Federal Court of Appeal has allowed that appeal,[3] and Mr. Agazarian has applied to the Supreme Court of Canada for leave to appeal. Counsel in this appeal are agreed that I should now await the decision on that leave application before deciding the present case.

[2]      In the meantime, some additional documentary evidence that was not available at the time of the trial in March 2003 has come into the hands of the Appellant. As a result, it has brought two further motions to reopen the trial to admit these additional documents into evidence. The documents are relevant, and they emanate from a third party without any collusion on the Appellant's part. They may well have a significant bearing on the outcome of the appeals. Counsel are agreed that if I reopen the hearing to admit them there is no need for additional oral evidence; the documents can simply be added to what is already a very substantial body of documentary evidence.

[3]      I am of the view that these additional documents should be made part of the trial record, and that the hearing should be reopened for that limited purpose, for essentially the same reasons that I gave on the first motion to reopen.[4] An Order will therefore issue reopening the trial, solely to add to the evidence the documents that are Exhibits A to U to Affidavit #2 of Gordon Geddes sworn May 7, 2004, Exhibits A to D to Affidavit #3 of Gordon Geddes sworn May 12, 2004 and Exhibit A to Affidavit #4 of Gordon Geddes sworn June 2, 2004.

Signed at Ottawa, Canada, this 4th day of August, 2004.

"E.A. Bowie"

Bowie J.

SCHEDULE

Exhibit A-5                 Joint Interest Billing from Penn West Petroleum Ltd. to Grand Bell dated December 2003.

Exhibit A-6                 Statement of Operations from Penn West to Grand Bell dated December 2003.

Exhibit A-7                 Aged Open Invoice Statement from Penn West to Grand Bell as at December 31, 2003.

Exhibit A-8                 Statement of Operations from Penn West to Grand Bell dated December 31, 2003.

Exhibit A-9                 Operator Invoice from Penn West to Grand Bell dated December 31, 2003.

Exhibit A-10               Copy of Penn West AFE Number A 320030 R executed by Grand Bell on January 7, 2004.

Exhibit A-11               Copy of a letter from Penn West to Grand Bell dated January 16, 2004.

Exhibit A-12               Statement from January 2004 showing various Penn West AFE's.

Exhibit A-13               Net Gas Royalty Owner Statement from Penn West to Grand Bell dated January 22, 2004.

Exhibit A-14               Copy of a letter from Penn West to Grand Bell dated January 30, 2004, with attached AFE No. A 480003 and Cost Estimate Sheet (2 copies).

Exhibit A-15               Statement of Expenditure from Penn West to Grand Bell dated January 31, 2004.

Exhibit A-16               Statement of Operations from Penn West to Grand Bell dated January 31, 2004.

Exhibit A-17               Operator Invoice from Penn West to Grand Bell dated January 31, 2004.

Exhibit A-18               Statement of Expenditures from Penn West to Grand Bell dated February 2004.

Exhibit A-19               Statement of Operations from West to Grand Bell dated February 2004.

Exhibit A-20               Joint Interest Billing from Penn West to Grand Bell dated February 2004.

Exhibit A-21               Copy of a letter from Penn West to Grand Bell dated February 5, 2004.

Exhibit A-22               Net Gas Royalty Owner Statement from Penn West to Grand Bell dated February 20, 2004.

Exhibit A-23               Vendor History Report from Penn West to Grand Bell dated March 4, 2005.

Exhibit A-24               Copy of a cheque from Penn West to Grand Bell dated April 6, 2004.

Exhibit A-25               Land Rental Invoice from Penn West Petroleum for May 2004 to Grand Bell.

Exhibit A-26               Joint Interest Billing from Penn West to Grand Bell dated September 2003.

Exhibit A-27               Statement of Operations from Penn West to Grand Bell dated September 2003.

Exhibit A-28               Copy of letter from Penn West to Grand Bell dated August 25, 2003 with attached Cost Estimate for AFE A 320030.

Exhibit A-29               Copy of Penn West Aged Open Invoice Statement as at December 31, 2003.

Exhibit A-30               Copy of cheque from Penn West to Grand Bell dated May 20, 2004.

CITATION:

2004TCC541

COURT FILE NO.:

95-978(IT)G

STYLE OF CAUSE:

Geddes Contracting Co. Ltd. and Her Majesty the Queen

PLACE OF HEARING:

Ottawa, Ontario

DATES OF HEARING:

May 14, 2004 and July 6, 2004

REASONS FOR ORDER BY:

The Honourable Justice E.A. Bowie

DATE OF ORDER:

August 4, 2004.

APPEARANCES:

Counsel for the Appellant:

John W. Bilawich

Counsel for the Respondent:

Robert Carvalho

COUNSEL OF RECORD:

For the Appellant:

Name:

John W. Bilawich

Firm:

Holmes & King

For the Respondent:

Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada

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