Canada ( Attorney General ) v. Pompa
A-309-93
Décary J.A.
16/9/94
8 pp.
Application to set aside decision by Tax Court of Canada allowing appeals filed by respondent from two notices of assessment issued by Minister of National Revenue-Action based on three grounds -- Third ground dismissed forthwith as Court could not conclude Trial Judge did not take into account evidence before him -- Second ground: Court erred in law in using material not entered in evidence at hearing -- Judge cannot take cognizance of facts coming directly to his attention in course of another proceeding in which facts not entered in evidence -- Judge has no ex officio knowledge of what he learned in another case and fails in duty of neutrality if makes use of such knowledge -- In case at bar not only did Judge undertake to consider facts not in evidence, but in addition used record as pretext for ex parte settlement with applicant and counsel of accounts which he had clearly carried over from earlier case -- Partially based assessment of respondent's credibility on these facts which he did not have right to consider -- Applicant's second ground thus valid -- As to third ground, by imposing on Minister burden "to determine with certainty the amount of income not reported by a taxpayer" when penalty levied and Income Tax Act, s. 163(3) applied, Judge relied on two decisions of Tax Court of Canada since disavowed by Federal Court Trial Division in Kerr, N. v. The Queen (1989), 89 DTC 5348 -- Application allowed -- Income Tax Act, S.C. 1970-71-72, c. 63, s. 163(3).