Motion heard on November 21, 2024 at Vancouver, British Columbia
Before: The Honourable Justice David E. Graham
Appearances:
Counsel for the Appellants:
|
Joel Nitikman
Harry Cho
|
Counsel for the Respondent:
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Eric Brown
Anatoliy Vlasov
Randall Lau
|
ORDER
The Appellants’ motion is dismissed. Costs shall be in the cause.
Signed at Vancouver, British Columbia, this 28th day of November 2024.
“David E. Graham”
Citation: 2024 TCC 151
Date: 20241128
Docket: 2022-961(IT)G
BETWEEN:
AMY YING JUN LIU,
Appellant,
and
HIS MAJESTY THE KING,
Respondent;
Docket: 2022-963(IT)G
AND BETWEEN:
JIA BIN LIU,
Appellant,
and
HIS MAJESTY THE KING,
Respondent;
Docket: 2022-965(IT)G
AND BETWEEN:
LIAN DI LIU,
Appellant,
and
HIS MAJESTY THE KING,
Respondent.
REASONS FOR ORDER
Graham J.
[1] The Appellants seek an order under subsection 135(2) of the Tax Court of Canada Rules (General Procedure) that the order of proceedings at trial be reversed such that the Respondent presents his evidence first. The Appellants say that such an order would be appropriate because the only issues in the appeal involve either statute barred years or penalties.
[2] Subsection 135(2) reads:
Unless the judge directs otherwise, the parties shall put in their respective cases by evidence or by putting before the Court the facts on which they rely, in the following order,
-
(a)the appellant,
-
(b)the respondent; and
-
(c)the appellant in respect of rebuttal evidence.
[3] The Appellants’ motion is premature. The “judge”
referred to in subsection 135(2) is the trial judge, not a case management judge or motion judge. It would be inappropriate for me, as a motion judge, to determine how the trial judge will ultimately conduct the trial.
[4] I completely understand why parties would want to know well in advance of trial whether an order will be made under subsection 135(2). Such an order would have a significant impact on both sides’ preparation for trial.
[5] In my view, the appropriate approach in these circumstances is that, when the parties eventually file their joint application for time and place of hearing, they ask that a separate motion date be scheduled before the trial judge some months in advance of the trial. That will ensure that the trial judge has time to rule on the motion and the parties have time to appropriately prepare for trial.
[6] In light of my conclusion above, I will not comment on the merits of the Appellants’ motion, particularly because the Respondent disagrees with the premise underlying the motion.
Signed at Vancouver, British Columbia, this 28th day of November 2024.
“David E. Graham”
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