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Date: 20040219

Docket: A-542-03

Citation: 2004 FCA 72

Present:           PELLETIER J.A.

BETWEEN:

                                                               LENCY TURNER

                                                                                                                                            Appellant

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                        Respondent

                              Written motion decided without appearance by the parties.

                                Order delivered at Ottawa, Ontario, February 19, 2004.

REASONS FOR ORDER BY:                                                                             PELLETIER J.A.


Date: 20040219

Docket: A-542-03

Citation: 2004 FCA 72

Present:           PELLETIER J.A.

BETWEEN:

                                                               LENCY TURNER

                                                                                                                                            Appellant

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

PELLETIER J.A.

[1]                The appellant has filed a motion supposedly based on rule 343 of the Federal Court Rules, 1998, which deals with the content of the Appeal Book, but, in fact, the recourse that she invoked is based on rule 351, i.e. leave to present new evidence in support of her appeal.


[2]                The appellant's motion shows that she has a misconception about the role of an appeal court. An appeal is not a new trial which enables a party to resubmit its evidence in light of the reasons of the court below. As a general rule, an appeal court only addresses evidence that was before the trial court. The exception provided in rule 351 is very narrow, precisely for the reasons stated in Public School Boards Association of Alberta v. Alberta (A.G.), [2000] 1 S.C.R. 44 at paragraph 10, the text of which is reproduced at paragraph 10 of the respondent's submissions. This is why the appeal courts refuse to accept new evidence unless the evidence could not have been filed before the trial court by exercising due diligence, and when, further, the evidence could have a determinative effect on an issue.

[3]                In this case, neither of these conditions appears to be present. The appellant appears simply to want to contradict the findings of the judge of the Tax Court of Canada by filing evidence that was already available to her but that she did not think appropriate to file during her trial.

[4]                For these reasons, the appellant's motion is dismissed. The content of the Appeal Book is limited to the proceedings and evidence that were available to the trial judge.

             "J.D. DENIS PELLETIER"     

                        J.A.

Certified true translation

Kelley A. Harvey, BA, BCL, LLB


                                                  FEDERAL COURT OF APPEAL

                                                                             

                                                      SOLICITORS OF RECORD

DOCKET:                                          A-542-03

STYLE OF CAUSE:              LENCY TURNER

                                                                                                                                            Appellant

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                        Respondent

WRITTEN MOTION DECIDED WITHOUT APPEARANCE BY THE PARTIES

REASONS FOR ORDER AND ORDER BY: PELLETIER J.A.

DATE OF REASONS FOR ORDER AND ORDER:        February 19, 2004

WRITTEN REPRESENTATIONS BY:

Lency Turner                                    Representing herself

Martin Gentile                                                                       For the respondent

SOLICITORS OF RECORD:

Lency Turner                                    Representing herself

Chicoutimi, Quebec

Morris Rosenberg

Deputy Attorney General of Canada                                   For the respondent

Montréal, Quebec


Date: 20040219

Docket: A-542-03

OTTAWA, ONTARIO, FEBRUARY 19, 2004

Present:           PELLETIER J.A.

BETWEEN:

                                                               LENCY TURNER

                                                                                                                                            Appellant

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                             

                                                                                                                                        Respondent

                                                                       ORDER

The appellant's motion is dismissed. The content of the Appeal Book is limited to the proceedings and evidence that were available to the trial judge.

                                                                                                                  "J.D. DENIS PELLETIER"                         

                                                        J.A.

Certified true translation

Kelley A. Harvey, BA, BCL, LLB


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