Date: 20010326
Docket: A-154-00
Neutral citation: 2001 FCA 86
CORAM: NOËL J.A.
BETWEEN:
GORDON E. SMITH
Applicant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Vancouver, B.C. on February 6, 2001
ORDER delivered at Ottawa, Ont., March 26, 2001
REASONS FOR ORDER BY: SHARLOW J.A.
CONCURRED IN BY: NOËL J.A.
EVANS J.A.
Date: 20010326
Docket: A-154-00
Neutral citation: 2001 FCA 86
CORAM: NOËL J.A.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
GORDON E. SMITH
Applicant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER ON MOTION BY RESPONDENT TO EXLUDE
A DOCUMENT FROM THE APPLICANT'S RECORD
SHARLOW J.A.
Gordon E. Smith was assessed under subsection 227.1(1) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) and subsection 323(1) of the Excise Tax Act, R.S.C. 1985, c. E-15. He appealed the assessments to the Tax Court of Canada under the informal procedure. His appeal was dismissed on February 9, 2000 (reported as Smith v. Her Majesty the Queen, 2000 D.T.C. 1888, [2000] 2 C.T.C. 2494, 2000 G.T.C. 758, [2000] G.S.T.C. 12, 16 C.B.R. (4th) 289). Mr. Smith applied for judicial review of the Tax Court decision.
At the hearing of the judicial review application, a motion was made by counsel for the Crown to have a document removed from the record. It is undisputed that Mr. Smith's application record contains a document that was not in evidence before the Tax Court (Application Record, page 65-9, second copy at page 181-185). The document is a working paper apparently prepared by a Crown official in the course of an audit. The document was disclosed to Mr. Smith shortly before the Tax Court trial but, according to Mr. Smith, it was not accepted by the Tax Court Judge when he attempted to adduce it as evidence.
The transcript of the proceedings in the Tax Court has not been included in the applicant's record or the respondent's record. The reasons for decision do not refer to this document or indicate why it was not accepted as evidence. However, other audit material has been properly included in the record, and the Tax Court Judge heard oral evidence about various audits that were conducted.
Despite the fact that the admissibility of the audit paper was apparently the subject of a specific ruling by the Tax Court Judge, it appears that its presence in the application record, in two different places, escaped the notice of counsel for the Crown. To her credit, she admitted frankly that she had not checked the applicant's record before preparing her own material or before the hearing. However, having failed to notice the document, she was unable to comment on its accuracy or reliability, or to suggest any basis on which the Crown might be prejudiced if the document remains in the record. It was only at the hearing that she moved that it be removed from the applicant's record. The motion was made orally, without prior notice to Mr. Smith.
Generally speaking, an applicant for judicial review, in this case Mr. Smith, is expected to provide the Court with a record that contains such of the material before the decision maker that is necessary to support the arguments in favour of the application. The respondent, in this case the Crown, is expected to review the applicant's record with two objectives in mind. One is to determine whether the respondent's arguments will require reference to material that was before the decision maker but is not in the applicant's record. That additional material may then be included in the respondent's record. The other is to identify anything in the applicant's record that ought not to be there, so that timely objection can be made. This is particularly important where, as in this case, the respondent is the Crown and the applicant is not a lawyer and is not represented by a lawyer. It is very common for lay litigants to misunderstand the rules relating to records and make mistakes in their preparation.
In this case the Crown's last minute motion was unfair to Mr. Smith, who came to the hearing believing that he would be permitted to rely on the document. It also resulted in a waste of time at the hearing.
However, the failure of Crown counsel to act with diligence in reviewing the applicant's record does not alter the general rule that judicial review of a decision must be based on the material that was before the decision maker. Nor can I ignore the fact that Mr. Smith attempted unsuccessfully to adduce this document at trial. The record discloses no basis on which I can conclude that the Tax Court Judge erred in refusing to admit it.
Therefore, I would allow the Crown's the motion to remove the document from the applicant's record. However, I consider this an appropriate case to award Mr. Smith costs of the motion in the amount of $200, payable forthwith regardless of the disposition of the judicial review application.
Karen R. Sharlow
J.A.
"I agree
Marc Noël J.A."
"I agree
John M. Evans J.A."