Moore v. Canada, [1997] 1 CTC 116, 97 DTC 5001

McDonald J.A.: — This is an application for Judicial Review from a Judgment of the Tax Court of Canada dated January 12, 1996, made in the informal procedure.

At the hearing it was brought to the attention of the Tax Court Judge that issues similar to those before him were before this Court in Hoefele v. R., (sub nom. Canada Attorney General v. Hoefele) (1995), 8 C.C.P.P. 225, 95 D.T.C. 5602, [1996] 1 F.C. 322, (sub nom. Minister of National Revenue v. Hoefele) 189 N.R. 259, (sub nom. Krull v. Canada (Attorney General)) [1996] 1 C.T.C. 131 (F.C.A.).

After hearing evidence and argument the learned Tax Court Judge said the following:

So there will be no decision out of the Court whatsoever unless next week I all of a sudden on reviewing all the cases determine that you just outright win, but I’m going to wait, in any event, because I see a breakdown. So no matter what, you’re not going to hear from me until I’ve received you written argument, copies to him, your written argument, copies back. So if the Federal Court of Appeal takes three months, you won’t hear anything from me until the thirty or sixty days has expired, unfortunately, and the computer in Ottawa is going to get on me in ninety days asking why I haven’t rendered a decision herein, but you know why. Thank you very much.

This Court rendered its decision in Hoefele in October 1995. The Crown applied for leave to appeal to the Supreme Court of Canada from that decision and asked the Court to refrain from pronouncing Judgement until the Supreme Court had disposed of the application for leave to appeal.

The applicant was notified of the Crown’s request for a continuation of the adjournment but did not respond.

On January 12, 1996, the Tax Court Judge rendered his decision which was received by the applicant on January 24, 1996. When the Tax Court Judge rendered his decision in this case, he had not received the representations either from the Minister or the applicant respecting the decision of this Court in Hoefele.

Before us the applicant raises as his first ground of error that the Trial Judge was wrong in rendering Judgment in this case without having heard from the parties respecting the decision of this Court in Hoefele.

The applicant points out that the Tax Court Judge considered the decision in Hoefele in his reasons and although he found it inapplicable, the applicant thinks the decision could have influenced the ultimate result.

The applicant says further that whether or not the Hoefele decision was inapplicable, the Court was wrong in not providing him with an opportunity to speak to the decision before pronouncing judgment and to that extent he was deprived of an opportunity to present his case.

In oral argument before us the applicant elaborated on this objection to the procedure followed by the Tax Court Judge. Counsel for the respondent on the other hand takes the position that the Tax Court Judge was not wrong, and that even if he was, the error did not affect the result given the factual findings made by the Judge.

Whether or not the decision of the Court in Hoefele is inapplicable to the facts of this case (a point on which we express no opinion in view of the conclusion which we have reached), we are all of the view nevertheless that the applicant should have been given an opportunity to make representations with respect to Hoefele before Judgment was rendered as he was led by the Tax Court Judge to expect.

To this extent, the applicant was denied an opportunity to present his case. The Application will therefore be allowed, the decision of the learned Tax Court Judge will be set aside and the applicant’s appeal will be returned to the Tax Court Judge for re-hearing.

Application for judicial review was granted.