A-610-96
DÉCARY, J.A.
McDONALD, J.A.
B E T W E E N:
RICHARD NELSON AINSLEY
Applicant
-and-
HER MAJESTY THE QUEEN
Respondent
HEARD at Toronto, Ontario, Monday, May 26, 1997.
JUDGMENT delivered from the Bench at Toronto, Ontario, on Monday, May 26, 1997.
REASONS FOR JUDGMENT OF THE COURT BY: STONE, J.A.
A-610-96
DÉCARY, J.A.
McDONALD, J.A.
B E T W E E N:
RICHARD NELSON AINSLEY
Applicant
-and-
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario,
on Monday, May 26, 1997.)
STONE, J.A.:
This application is to review and set aside a judgment of the Tax Court of Canada of June 21, 1996, whereby an appeal from a determination of the Minister that the applicant was not in "insurable employment" during the period June 14, 1993 to August 18, 1993, was dismissed.
It is well established that a determination of this kind is generally to be made in accordance with the tests enunciated by this Court in Wiebe Door Services Ltd. v. M.N.R., [1986] 3 F.C. 553 (F.C.A.).
The circumstances of the case are somewhat exceptional. At the opening of the hearing, after the applicant was sworn, counsel for the respondent stated at page 4 of the transcript:
| |
Your Honour, the Minister doesn't have any witnesses except that I was going to cross-examine Mr. Ainsley and possibly the Intervenor. |
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The Intervenor was the company by whom the applicant claimed to have been employed. However, the respondent called both the owner of that company and its outside bookkeeper.
The applicant, who was not represented by counsel, did not request an adjournment to call as a witness one David Munro, who he now says would have supported his case. The evidence for the respective parties was found by the Tax Court to be in conflict. In the end the learned Deputy Tax Court Judge decided that in the circumstances it was impossible for him to determine which evidence to accept. Instead, he concluded:
| It would appear that the evidence that is before me is that which the Minister considered when he made his determination, and if that is the case, in following the Tignish case, I can't go behind the reasoning of the Minister and therefore, as unsatisfactory as it may be for the Appellant, and probably equally for the Payor and Intervenor, I have to dismiss the appeal.1 |
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In ordinary circumstances, this would leave the assumptions pleaded by the respondent in her reply before the Tax Court of Canada, to the effect that the applicant was not in "insurable employment", intact.
The record also shows that the Deputy Tax Court Judge refused to admit into evidence a letter of September 28, 1995 written to the applicant by a lawyer, Ian D.C. McPhail, which he claims lends some support for his assertion that he was in insurable employment. The Deputy Tax Court Judge ruled that the letter could not be admitted in the absence of its author as a witness.
The respondent concedes that the decision of this Court in Tignish is inapplicable in the circumstances. In our view, given that the proceedings below were conducted in an informal way, it was not necessary in order for the letter to be admitted into evidence that its author be called2. Moreover, in the exceptional circumstances described above, the applicant should be given an opportunity before closing his case to call David Munro, who he claims will support his case and who would have been called had he known in good time that the outside bookkeeper was going to be called by the respondent.
The s. 28 application will be allowed, the judgment of the Tax Court of Canada set aside and the matter will be referred back to that Court for redetermination on the basis that the appeal to it be continued for the purpose of admitting the letter of September 28, 1995 addressed to the applicant by Ian D.C. McPhail into evidence and permitting the applicant to call as a witness David Munro in support of his case.
"A.J. Stone"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: A-610-96
STYLE OF CAUSE: RICHARD NELSON AINSLEY
- and -
DATE OF HEARING: MAY 26, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: STONE, J.A.
Delivered from the Bench at Toronto, Ontario
on Monday, May 26, 1997
APPEARANCES:
Mr. Richard Ainsley
For the Applicant
Ms. Elizabeth Chasen
For the Respondent
SOLICITORS OF RECORD:
Mr. Richard Ainsley
R.R. < 3
Bolton, Ontario
L7E 5R7
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: A-610-96
Between:
RICHARD NELSON AINSLEY
Applicant
- and -
Respondent
REASONS FOR JUDGMENT OF THE COURT
__________________
1 The "Tignish case" is an obvious reference to this Court's decision in Tignish Auto Parts Inc. v. Minister of National Revenue (1994), 25 Admin. L.R. 1.
2 See subsection 18.15(4) of the Tax Court of Canada Act, R.S.C. 1985, c. T-2, as amended, as read with paragraph 18.29(1)(b) of that statute.
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