Date: 20010706
Docket: A-119-01
Neutral citation: 2001 FCA 234
OTTAWA, ONTARIO, FRIDAY, THIS 6TH DAY OF JULY, 2001
PRESENT: THE HONOURABLE MR. JUSTICE ISAAC
BETWEEN:
L.R. VIVIAN ASSOCIATES LIMITED
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
ORDER
1. Leave is granted to file amended written submissions and a fresh amended motion record. The motion is granted and, pursuant to Rule 351 of the Federal Court Rules, 1998, leave
is granted to the appellant to adduce, at the hearing of the appeal, evidence on questions of fact in the form of the affidavit of Leslie R. Vivian, sworn 14 March, 2001;
2. The appellant is allowed to include in the appeal book, as part of its contents, the affidavit of Leslie R. Vivian, after it has been served and filed;
3. The contents of the appeal shall consist of:
(3) a table of contents describing all the documents;
(4) the notice of appeal, dated 1 March, 2001;
(5) the order of Judge D.W. Beaubier, signed at Ottawa on 14 February, 2001;
(6) the reasons for judgment of Judge D.W. Beaubier, delivered orally from the Bench at Toronto on 7 February 2001, but signed in Ottawa on 10 May 2001;
(7) the respondent's motion record filed in relation to the motion before Judge D.W. Beaubier on 7 February 2001;
(f) the notice of appearance filed by the respondent;
(g) the affidavit of Leslie R. Vivian, sworn on 15 March 2001 and all the exhibits referred to therein; and,
(h) a copy of this order.
4. The time for serving and filing the affidavit of Leslie R. Vivian for use in the appeal and the appeal book is extended to Monday, 16 July, 2001.
5. Costs of the motion will be costs in the appeal.
"Julius A. Isaac"
_______________________________
J.A.
REASONS FOR ORDER
[1] The appellant's tax appeals were dismissed on motion made by the respondent. The order dismissing the appeals recites that it was made "upon hearing the parties". In the affidavit which he filed on behalf of the appellant on this motion, Leslie R. Vivian deposes that the appellant was not represented by counsel and that he, as an officer of the appellant, was not permitted under Rule 30(2) of the Tax Court Rules, to explain why that was the case or to make any representations on behalf of the appellant. Consequently, the appellant now contends that it was not heard on the motion.
[2] I notice that neither party has made available on this motion a transcript of the proceeding on the motion before the Tax Court Judge. I infer from this that such a transcript does not exist. Such a transcript, if it existed, would have enabled this Court to assess and pass upon the issues raised in the appeal. The appellant has now served and filed an amended motion record containing the reasons for order that Judge Beaubier made dismissing the appellant's tax appeals. The respondent has not replied to it and the time for doing so has expired. I notice that although Judge Beaubier delivered his reasons orally from the Bench on 7 February 2001, he did not signed them until 10 May 2001, long after the appellant had launched this motion with this Court. In light of these facts and notwithstanding the reasons which the learned Tax Court Judge gave for the discretionary order that he made, it is my view, that special circumstances, within the meaning of Rule 351 of the Federal Court Rules, 1998, exist to warrant granting leave to the appellant to file affidavit evidence on questions of fact. I note here that the affidavit of Leslie R. Vivian is in essential matters largely uncontradicted.
[3] It is my respectful view that the best interests of the administration of justice and judicial efficiency require that this Court should grant the order sought on his motion.
"Julius A. Isaac"
______________________________
J.A.