INCOME TAX |
Practice |
Selmeci v. Canada
A-669-00
2002 FCA 293, Malone J.A.
24/7/02
8 pp.
Judicial review of Tax Court's decision on ground wrongly excluded evidence as hearsay--Hearing held under Informal Procedure--Tax Court of Canada Act, s. 18.15(4) providing Court not bound by legal or technical rules of evidence, and all appeals referred to in s. 18 shall be dealt with as informally, expeditiously as possible--Nothing in s. 18.15(4) mandating admission of evidence that would be inadmissible under law of evidence--"Not bound by" merely giving Tax Court Judge discretion to disregard rules of evidence in order to hear appeal as informally, expeditiously as circumstances, considerations of fairness permit--Discretion must be exercised in manner that ensures litigant afforded full opportunity to present case, respond to case against her--Tax Court of Canada Rules (Informal Procedure) apparently not requiring disclosure of documentary evidence in advance of trial--Thus party may attempt to introduce written statement by individual not present in court; party opposite then deprived of right to cross-examine author, may be denied as adequate opportunity to present independent evidence to contradict, explain statement or put it in proper context--Consequently absolute abolition of hearsay rule under Informal Procedure could lead to serious injustice as any findings by Tax Court Judge as to reliability or weight of statement in such circumstances would be based on speculation, as statement untested--Tax Court Judge may not reject evidence simply on basis that hearsay and not admissible under "exception" to hearsay rule--Under s. 18.15(4) Tax Court Judge may admit hearsay evidence even though would not be sufficiently necessary to satisfy R. v. Khan, [1990] 2 S.C.R. 531, but nonetheless relevant, reliable --S. 18.15(4) not intended to eradicate normal rules of evidence but intended to provide Tax Court Judges with necessary flexibility to enable them to deal as informally, expeditiously with appeal as circumstances of case, considerations of fairness allow--Open to judges to refuse to admit hearsay evidence where admission would not advance statutory objectives--Not clear from transcript that Tax Court Judge in fact refused to admit any of applicant's documents--Seemed only to be concerned with relevance, reliability of documents--Refusal within discretion--(2) Tax Court Judge finding principle of estoppel preventing applicant from denying ownership of limited partnership because represented to Minister in previous years that owned interest --Viewed in context, reference to estoppel at best non-material error--Finding of fact based on totality of evidence --Tax Court of Canada Act, R.S.C., 1985, c. T-2, s. 18.15(4) (as enacted by R.S.C., 1985 (4th Supp.), c. 51, s. 5)--Tax Court of Canada Rules (Informal Procedure), SOR/90-688.