Date: 20051208
Dockets: A-491-04
A-492-04
A-493-04
A-494-04
Citation: 2005 FCA 416
Present: LÉTOURNEAU J.A.
A-491-04
BETWEEN:
JACKY DESBIENS
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
A-492-04
BETWEEN:
JACKY DESBIENS
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
A-493-04
BETWEEN:
RICHARD DESBIENS
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
A-494-04
BETWEEN:
RICHARD DESBIENS
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
LÉTOURNEAU J.A.
[1] The appellants in dockets A-491-04 to A-494-04 appealed a decision by the Tax Court of Canada stating that their employment was not insurable employment because an employer/employee relationship did not exist between them and those who gave them work. The periods in question were between the years 1998 and 2002.
[2] The hearing of these appeals had been scheduled for Monday, December 12, 2005. On December 5, 2005, the appellants' counsel filed with the Registry of the Court a motion to adduce new evidence into the record. He asked that the hearing of that motion be scheduled at the same time as the hearing of the appeal on the merits, i.e. December 12, 2005.
[3] The new evidence consists of four decisions by the Canada Customs and Revenue Agency (Agency) dated March 8, 2005, regarding the appellants. In these decisions, the Agency held that the employment of each of the appellants in 2003 was insurable employment because an employer/employee relationship then existed.
[4] The practice of the Federal Court of Appeal is that motions be filed in writing with evidence by affidavit and that the adjudication of the motion is based on that written evidence and the written submissions contained in the motion. Exceptionally, when circumstances so require or so justify, the Court may grant leave to hold a hearing on the motion.
[5] In this case, it is surprising that the appellants waited until one week before the hearing of the matter on the merits to file their motion even though the evidence that they wanted to file had been available since March 8, 2005. None of the submissions contained in the motion explain the late filing, which made it impossible for all practical purposes for the respondent to file evidence to explain these new decisions and the new legal position adopted regarding the former position regarding the years 1998 to 2002.
[6] In any event, the respondent submitted a brief motion record and the appellants' counsel responded thereto by letter dated December 7, 2005. I point out that, in this letter, the appellants' counsel informed the respondent that three witnesses would be at the hearing of the appeal and that the respondent would be entitled to examine them as he saw fit.
[7] I mention this information from appellants' counsel because it is not standard practice for the Federal Court of Appeal to hear witnesses. Hearing witnesses first requires leave from the Court and arrangements for a stenographer, who is normally not present, to record and preserve the evidence so filed. Moreover, the hearing of witnesses cannot be an improvised matter considering the fact that a fixed period of time has already been allotted for the hearing of the appeal on the merits. Quite simply, the administration of justice cannot be effective when there is last-minute improvisation.
[8] So as not to encroach on the time allowed for the hearing of the appeal on the merits, I think it best to decide on the merits of the motion now.
[9] As a general rule, an appeal is heard on the basis of the appeal book as established pursuant to sections 343 and 344 of the Federal Courts Rules. However, section 351 provides that new evidence may be filed on a question of fact.
[10] New evidence is admissible when it is evidence that did not exist or, if it did, could not have been diligently discovered or obtained before the decision under appeal was made. Further, this evidence must be relevant in the sense that it must bear on a decisive or potentially decisive issue: see Public School Boards Association of Alberta v. Alberta (A.G.), [2000] 1 S.C.R. 44, at page 48. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result: ibidem. Finally, the Court of Appeal has the discretion to refuse documentary evidence on appeal when that evidence cannot be safely interpreted without testimonial evidence: Walkus v. Canada (2000), 256 N.R. 147 (F.C.A.), leave to appeal to the Supreme Court of Canada dismissed [2001] 1 C.N.L.R. IV.
[11] The first test for admissibility of the evidence is met in this case: the decisions by the Agency in 2005 were made after the decision by the Tax Court of Canada in August 2004. However, I do not believe that the other requirements are satisfied.
[12] In fact, these decisions simply establish that, for different periods after those at issue on appeal, the requirements for a contract of service were now met. That documentary evidence does not at all mention the reasons why those requirements are now satisfied. It does not in any way reveal the nature of the changes made by the appellants in their employment relationship with those providing them work. There is no description or discussion of those conditions of employment. At best, these decisions by the Agency are evidence for the periods at issue for 2003. We cannot infer from that documentary evidence alone that the legal and factual situation in 2003 was the same that prevailed from 1998 to 2002.
[13] The appellants' counsel submits at paragraph 7 of his written submissions that the only difference existing between the years 1998 to 2002 and the year 2003 was the existence of a written employment contract governing the relationship between the appellants and their work provider.
[14] I would like to agree with this submission, but there is a very significant difference with the earlier situation where everything was verbal and the relationship between the rental of work equipment or tools and the income earned was rather vague. It is possible that the employment contract brought the necessary corrective measures to the situation which had prevailed before and that those measures shall from now on better reflect the intentions of the parties and the true contractual relationship existing between them. This written contract is not in evidence and we do not know what influence it may have had on the decision made by the Agency, as I suspect is the case.
[15] In short, I am not satisfied that this new documentary evidence may be interpreted without bringing in additional testimony which cannot be adduced because of the late filing of the motion. Similarly, I am not persuaded that this new evidence filed assists the Court in its determination of the issues raised on appeal, which must be assessed in accordance with the evidence in the record with regard to the legal nature of the contractual relationship of the parties for the period from 1998 to 2002. I am persuaded that it is not enough to decide all or part of the issues under appeal.
[16] For these reasons, the motion to adduce new evidence shall be dismissed with costs in favour of the respondent.
"Gilles Létourneau"
Certified true translation
Kelley A. Harvey, BCL, LLB
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