Date: 20000626
Dockets: 97-1632-IT-G; 97-1633-IT-G
BETWEEN:
RONALD J. MILLER ,R.J. MILLER ASSOCIATES (1986) LTD.
Appellants,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Order
McArthur J.T.C.C.
[1] A hearing of the appeals in this matter was held on October 4, 5, 6 and 7, 1999. Before judgment was rendered, the Appellants made application for an order reopening the case pursuant to rule 138(1) of the Tax Court of Canada Rules (General Procedure). The grounds for the motion are that the Appellants have further evidence to the effect that a prototype gun has now been completed and an advertising and market campaign has been designed. Various licenses have been issued, potential investors and manufacturers have been contacted and further expenditures have been incurred: Rule 138(1) of the Rules reads:
138(1) The judge may reopen a hearing before judgment has been pronounced for such purposes and upon such terms as are just.
The Appellants' position is that the new evidence is relevant to the issue of whether there was a viable business during the relevant years 1992, 1993 and 1994
Respondent's Position
[2] The evidence that the Appellants seek to have admitted concern facts that have arisen after the hearing and are totally irrelevant to the issues. The Respondent referred the Court to Morrison v. Hicks,[1] and Clayton v. British American Securities Ltd.[2]
[3] There is no question that I have a discretion to resume the hearing of the appeals but that discretion should be used in exceptional circumstances. In Lubrizol Corp. v. Imperial Oil Ltd.,[3] the Federal Court of Appeal was asked to review the trial judge's decision not to reopen a case and permit new evidence. The Federal Court of Appeal found that the trial judge failed to give sufficient weight to the fact that the Appellant would be permanently deprived of an opportunity of defending itself. The Court concluded that the Appellant should not be deprived of a fair opportunity to fully respond to the grave misconduct with which it was charged. The Court added that fairness and justice required that the Appellant be permitted to adduce further evidence.
[4] In the present appeal, given all of the circumstances, I find that in the furtherance of fairness and justice, the Appellants should be permitted to enter the evidence they request. This Court has been presented with additional and relevant evidence and justice would not be served by simply ignoring it.
[5] I would be remiss in not complimenting Respondent's counsel for her practical decision in consenting to the admission of the evidence as filed by way of the Appellants' affidavits and exhibits.
[6] The parties are given 30 days from the date of this Order to make written submissions with respect to the weight to be given to further evidence submitted by counsel for the Appellants during the hearing of this motion.
Signed at Ottawa, Canada, this 26th day of June, 2000.
"C.H. McArthur"
J.T.C.C.