Date: 20050914
Docket: A-201-05
Citation: 2005 FCA 290
Present: SHARLOW J.A.
BETWEEN:
RAIJA KARLSSON
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on September 14, 2005.
REASONS FOR ORDER BY: SHARLOW J.A.
Date: 20050914
Docket: A-201-05
Citation: 2005 FCA 290
Present: SHARLOW J.A.
BETWEEN:
RAIJA KARLSSON
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1] The appellant, who is self represented, filed a notice of appeal on April 29, 2005, to challenge a judgment of the Tax Court of Canada issued on April 1, 2005, in Tax Court File 2004-2371(IT)I.
[2] The appellant says that she was advised by Registry staff and by counsel for the respondent that because her appeal in the Tax Court was filed under the rules applicable to the informal procedure of the Tax Court, her appeal would be governed by the rules of this Court applicable to applications for judicial review. That information would have been correct at one time, but it is now incorrect because of recent changes to the Federal Courts Act, R.S.C. 1985, c. C-7 and the Federal Courts Rules, SOR/98-106.
[3] Before July 2, 2003, a judgment of the Tax Court in informal procedure matters could be challenged only by way of an application for judicial review filed in this Court. Such an application was governed by Part 5 of the Federal Court Rules, 1998 (as they were then called).
[4] On July 2, 2003, subsection 27(1.2) of the Federal Courts Act, as enacted by S.C. 2002, c. 8, s. 34, came into force. It provides that an appeal lies to this Court from a judgment of the Tax Court of Canada in informal procedure matters. At that time, however, the Federal Court Rules, 1998 had not yet been amended to accommodate the change in procedure mandated by subsection 27(1.2).
[5] For a period of time after July 2, 2003, there was in force a direction by the Chief Justice to the effect that although an appeal from the Tax Court in an informal procedure matter was to be commenced by way of a notice of appeal, the parties should follow the procedure applicable to applications for judicial review rather than the procedure for appeals.
[6] That was the situation until November 29, 2004, when amendments to the applicable rules of Court (now referred to as the Federal Courts Rules) came into effect (SOR/2004-283). Among those amendments are provisions that deal specifically with appeals of judgments of the Tax Court in informal procedure matters. New Rule 337.1 reads as follows:
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337.1 An appeal from a final judgment of the Tax Court of Canada under subsection 27(1.2) of the Act shall be commenced by a notice of appeal, in Form 337.1, setting out
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337.1 L'appel d'un jugement définitif de la Cour canadienne de l'impôt interjeté en vertu du paragraphe 27(1.2) de la Loi est introduit par un avis d'appel, établi selon la formule 337.1, qui contient les renseignements suivants :
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(a) the names of the parties;
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a) les noms des parties à l'appel;
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(b) a precise statement of the relief sought;
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b) un énoncé précis de la réparation recherchée;
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(c) a complete and concise statement of the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on;
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c) un énoncé complet et concis des motifs qui seront invoqués, avec mention de toute disposition législative ou règle applicable;
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(d) the date and details of the final judgment under appeal; and
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d) la date et les particularités du jugement;
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(e) the place proposed for the hearing of the appeal.
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e) l'endroit proposé pour l'audition de l'appel.
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[7] The same amendments added a form of notice of appeal (Form 337.1) to be used in appeals governed by Rule 337.1.
[8] The result of the amendments to the Federal Courts Rules is that an appeal commenced on or after November 29, 2004, from a judgment of the Tax Court in an informal procedure matter is governed by Part 6 of the Federal Court Rules, rather than Part 5.
[9] This information was published in a practice direction from the Chief Justice dated December 3, 2004. Unfortunately, that practice direction appears only on the website of the Courts Administration Service, and not among the "bulletins" on the website of the Federal Court of Appeal. Perhaps that is why this information did not come to the attention of litigants in the Federal Court of Appeal.
[10] This matter has now come before me for directions, so that any procedural errors may be corrected with as little difficulty as possible. I would emphasize that none of the procedural errors is the fault of the appellant, who has tried diligently to do what is required of her.
[11] My cursory review of the appellant's notice of appeal indicates that although the appellant did not use the correct form, she has provided all of the required information in the notice of appeal that she filed. Therefore, her appeal should be treated as having been commenced correctly and on a timely basis.
[12] The appellant has taken some steps toward preparing this matter for hearing. In particular, she has served on the respondent, and submitted for filing, an affidavit in intended compliance with Rule 306, which is part of Part 5. However, that affidavit must be disregarded, as it is not appropriate to file an affidavit in support of an appeal. Rather, an appeal must proceed on the basis of the record that was before the court below. In an appeal, that record is presented in the form of an "appeal book" (Rule 343).
[13] The rules applicable to appeals contemplate that the appellant and the respondent will agree, or attempt to agree, on the contents of the appeal book. In considering the contents of the appeal book, the parties are guided by the list in Rule 344(1). They are also guided by the principle that the appeal book should contain all documents that might assist the Court in determining the issues on appeal, but no documents that was not before the judge who made the order under appeal, except the transcript of the proceedings (if any), and the documents referred to in Rule 344(1)(a), (b), (f), (h) and (i).
[14] There is a further, rarely used exception in Rule 351 for evidence to be submitted on an appeal. Recourse to that rule requires a notice of motion, supported by an explanation in the form of an affidavit, explaining what the evidence is and why it could not, with due diligence, have been presented to the court below.
[15] If the parties cannot agree on the contents of the appeal book, the appellant may seek an order of the Court determining the contents. That is done by way of a formal motion under Rule 343(3).
[16] I propose to set a deadline for the filing of an agreement as to the contents of the appeal book, or a motion to have the Court determine its contents. That is the next step to be taken in preparing this appeal for a hearing.
[17] Once the contents of the appeal book are determined, either by the agreement of the parties or by the Court, the appellant normally is required to produce seven copies of the appeal book, and to see that one copy is served on the respondent, and five copies are filed with the Court, with proof of service. In this case, however, as the appellant has already gone to considerable trouble to produce a useful document in support of her appeal, I will make an order requiring the Administrator to prepare the appeal books under Rule 343(5) once the contents are settled. The appellant will be required to provide the Registry with a single copy of each of the required documents.
[18] I will also order the Administrator, once the seven copies of the appeal book are completed, to ensure that one copy is provided to the appellant, one copy is served on the respondent, and the remaining five copies are filed. I will set a deadline for the completion of those steps.
[19] One the appeal books are filed, the time will begin to run for the filing of the appellant's memorandum of fact and law (Rule 346(1)), the respondent's memorandum of fact and law (Rule 346(2)), and the requisition for hearing (Rule 347). The parties will be expected to adhere to those time limits.
"K. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-201-05
STYLE OF CAUSE: RAIJA KARLSSON
and HER MAJESTY THE QUEEN
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: SHARLOW J.A.
DATED: September 14, 2005
WRITTEN REPRESENTATIONS BY:
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Raija Karlsson
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ON HER OWN BEHALF
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Victor Caux
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Burnaby, B.C.
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ON HER OWN BEHALF
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John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario
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FOR THE RESPONDENT
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