Tax Court of Canada Judgments

Docket: 2003-3065(IT)G

BETWEEN:

DONALD NEIL MacIVER,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

____________________________________________________________________

Motions heard on December 13, 2004 and March 30, 2005 at Winnipeg, Manitoba

Before: The Honourable Justice J.E. Hershfield
Appearances:
For the Appellant:	The Appellant himself
Counsel for the Respondent:	Perry Derksen

____________________________________________________________________

ORDER

          Upon motion made by the Appellant for an Order seeking to strike out portions of the Reply to the Notice of Appeal;

          And further, for an Order under section 12 of the Tax Court of Canada Rules (General Procedure) extending the time for filing an Answer to the Reply to the Notice of Appeal;

          And upon motion made by the Appellant for an Order seeking to strike out portions of the Affidavit of Robert Allan Tataryn sworn June 23, 2004;

. . . 2

          And upon motion made by the Respondent for an Order seeking to estopp the Appellant from appealing the reassessments for the 1992 and 1994 taxation years insofar as the reassessments include in the Appellant's income the amounts of $400,000.00 and $3,000,000.00 respectively, and to strike out paragraphs 21 and 22 and the last sentence of paragraph 39 of the Notice of Appeal;

          And upon reading the Affidavits filed and hearing the parties;

          It is ordered that in accordance with and for the reasons set out in the attached Reasons for Order:

          (a)       the Appellant's motion to strike from the Reply is denied;

(b)      the Appellant's motion to strike from the Affidavit is redundant and denied;

(c)      the Appellant's motion for an extension to file an Answer is allowed. The Appellant shall have 60 days from the date of this Order to file an Answer;

(d)      the Respondent's motion to strike paragraphs 21 and 22 and the last sentence of paragraph 39 of the Notice of appeal is granted; and

          (e)       the Respondent's estoppel motion is denied.

          Each party shall bear their own costs.

Signed at Ottawa, Canada, this 13th day of April 2005.

"J.E. Hershfield"

Hershfield J.

Citation: 2005TCC250

Date: 20050413

Docket: 2003-3065(IT)G

BETWEEN:

DONALD NEIL MacIVER,

Appellant,

And

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR ORDER

Hershfield J.

[1]      A series of interlocutory notices of motion were filed pursuant to the Tax Court of Canada Rules (General Procedure) (the Rules) in respect of an appeal of reassessments of the Appellant's taxation years 1992 through 1997 inclusive. These motions concern only the 1992 and 1994 years and were filed after the Notice of Appeal and Reply were filed but prior to an Answer being filed and prior to any pre-trial discoveries and examinations being scheduled. The Reply, among other things, raises the question of issue estoppel on the basis that the Appellant was convicted of tax evasion in respect of unreported income amounts dealt with in the reassessments ($400,000.00 in respect of 1992 and $3,000,000.00 in respect of 1994). The Respondent at paragraph 40 of the Reply asserts that the Appellant "is estopped from appealing the reassessments for the 1992 and 1994 taxation years in so far as the reassessments include in the Appellant's income the $400,000.00 and $3,000,000.00 respectively from CASIL as fees". CASIL was the client of the Appellant in those years. The amounts referred to are amounts received by the Appellant in his capacity as a lawyer acting for CASIL.

[2]      The first motion was filed by the Appellant on February 17, 2004. It seeks to strike from the Reply all paragraphs relating to his criminal prosecution including the paragraph pleading reliance on issue estoppel and certain assumptions drawn from information obtained or understandings or inferences drawn from or during the course of his criminal prosecution. The motion also seeks to strike paragraphs referring to wilful default, fraud and making false statements. The grounds relied on are that the impugned paragraphs are frivolous, vexatious and embarrassing and may delay the fair trial of the appeal. It is paragraphs 53(a) and (b) of the Rules that are presumably relied on in the bringing of this first motion which has a second part. The second part of the motion seeks an extension of time to file an Answer to the Reply pending disposition of the motion to strike. Section 12 of the Rules permits the bringing of this part of the motion. I will refer to these two parts of the first motion respectively as the Appellant's motion to strike from the Reply and the Appellant's motion to file an Answer.

[3]      It is well settled that if the Respondent wants to argue issue estoppel at the trial of the appeal he must include the issue in the pleadings.[1] It is equally well settled that the Respondent in tax cases must plead the assumptions upon which it relies and, accordingly, he can and should plead assumptions directly related to issues raised in the appeal of the reassessment. Further, and regardless of the form of pleadings in tax cases, once an issue such as issue estoppel has been properly pleaded, facts asserted as supporting a party's position as to the determination of that issue properly form part of the pleadings.[2] On this basis that part of the Appellant's first motion that seeks to strike paragraphs relating to his criminal prosecution must fail unless the Respondent is successful in these proceedings on its motion to apply issue estoppel so as to make the impugned provisions in the Reply redundant. Similarly, paragraphs referring to wilful default, fraud and making false statements cannot be impugned as frivolous or vexatious or as tending to embarrass or delay since they are material assertions in respect of penalties assessed under the reassessments as well as being material in respect of the Respondent's issue estoppel motion and, potentially, time limitations.[3] Accordingly, the Appellant's motion to strike from the Reply cannot be granted.

[4]      The second motion was filed by the Respondent on July 19, 2004. It is for:

An order that the Appellant is estopped from appealing the reassessments for the 1992 and 1994 taxation years in so far as the reassessments include in his income the amounts of $400,000 and $3 million respectively, received from the Community Association of South Indian Lake. (i.e. CASIL)

[5]      The grounds for the motion are:

1.          On August 24, 1998 an indictment was preferred by the Attorney General of Canada in the Manitoba Court of Queen's Bench against the Appellant, charging, in part, under the Income Tax Act that:

Between January 14, 1992 and May 13, 1997, at or near the City of Winnipeg in the Province of Manitoba, the Appellant did unlawfully and wilfully evade the payment of taxes imposed by the Act by failing to declare income in the amount of $3,000,000.00, for any of the taxation years 1993, 1994, 1995 and 1996 thereby evading the payment of federal taxes in the amount of $913,771.80, more or less and did thereby commit the offence of tax evasion contrary to the provisions of the Act and amendments thereto ("Count 1");

Between January 31, 1991 and April 30, 1993, at or near the City of Winnipeg in the Province of Manitoba, the Appellant did unlawfully and wilfully evade the payment of taxes imposed by the Act by failing to declare income in the amount of $400,000.00 for the taxation year 1992 thereby evading the payment of federal taxes in the amount of $127,020.00, more or less and did thereby commit the offence of tax evasion contrary to the provisions of the Act and amendments thereto ("Count 2");

Between January 1, 1994 and May 30, 1997, at or near the City of Winnipeg in the Province of Manitoba, the Appellant did unlawfully make, or participate in, assent to or acquiesce in the making of false or deceptive statements in his returns of income for the taxation years 1993, 1994, 1995 and 1996, filed by him as required by the Act, by understating his taxable income in the said taxation years in the amount of $3,000,000.00, thereby evading the payment of tax in the amount of $913,771.80, more or less, and did thereby commit the offence of making a false or deceptive statement contrary to the provision of the Act and amendments thereto ("Count 3").

2.          The Appellant was convicted of Counts 1, 2 and 3 by jury on February 25, 1999 before MacInnes J. The convictions are in respect to the unreported income the Appellant received from the Community Association of South Indian Lake in the 1992 and 1994 taxation years of $400,000 and $3 million respectively.

3.          As a consequence of the Appellant's convictions on Counts 1, 2 and 3, issue estoppel applies.

4.          In the alternative, it would be an abuse of process to permit the Appellant to appeal the reassessments for the 1992 and 1994 taxation years in so far as the reassessments include in his income the amounts of $400,000 and $3 million respectively, received from the Community Association of South Indian Lake.

[6]      The motion states that the Respondent relies on paragraph 53(c) of the Rules in bringing the motion. This paragraph permits striking out or expunging all or part of a pleading (with or without leave to amend) on the ground that the pleading is an abuse of the process of the Court. The Respondent argues that it is this provision in the Rules which permits him to deal with the question of issue estoppel on an interlocutory basis. It is also argued that this provision has broader application than issue estoppel per se. The argument would also extend to permit evidence by affidavit as provided by section 71 of the Rules which would not apply were the estoppel issue pursued, as pleaded, in the normal course - at trial. I will refer to this part of the Respondent's motion as the Respondent's issue estoppel motion.

[7]      The Respondent's motion also seeks an Order to strike certain parts of the Notice of Appeal on the ground that they seek relief in respect of two matters over which this Court has no jurisdiction. The Respondent relies on paragraph 58(3)(a) of the Rules in respect of bringing this interlocutory motion pursuant to section 65 of the Rules. The first matter over which the Respondent asserts that this Court has no jurisdiction pertains to a jeopardy order obtained against the Appellant. Jeopardy orders are provided for in section 225.2 of the Act but jurisdiction over them lies with the Federal Court as provided in that section. The Appellant conceded the point at the hearing and agreed to the issuance of the Order requested in respect of this matter. The second matter over which the Respondent asserts this Court has no jurisdiction pertains to the imposition of provincial penalties. It is well established that this Court has no jurisdiction to hear discrete appeals respecting the imposition of provincial taxes and penalties that flow (or are asserted to flow) pursuant to provincial statutes, from federal tax computations litigated in this Court.[4] The Appellant made no argument at the hearing in respect of this matter. Accordingly, the Order requested in respect of this matter will be granted as well.

[8]      The third motion was that filed by the Appellant on October 11, 2004. It seeks to strike portions of an affidavit filed by the Respondent in respect of the Respondent's issue estoppel motion. I will refer to this motion as the Appellant's motion to strike from the affidavit. The subject affidavit was made by an investigations officer of the CRA on the basis of personal knowledge and on information and belief informed of by personal attendances during the criminal proceeding and by review of the record. The affidavit relays the assessment history, the criminal charges, excerpts of testimony at the criminal trial, excerpts of the defence and prosecuting lawyers' closing arguments and the judge's charge to the jury as well as material and documents relating to appeals of his convictions and sentencing to the Manitoba Court of Appeal. There is also reference to an application for leave to appeal to the Supreme Court of Canada.[5]

[9]      The Appellant objects to the affiant setting out particulars, informed of by review of records, of the reassessment history. The Appellant asserts that the records speak for themselves and should be introduced in the normal course of the appeal and not form part of the Affidavit. This position begs the question as to whether such records should be allowed to be introduced on affidavit evidence alone on an interlocutory motion or whether they should be introduced at the hearing of the appeal. This in turn begs the question as to whether the Respondent's issue estoppel motion should be brought before the judge hearing the appeal as opposed to being brought as a preliminary interlocutory motion before a judge not seized of the matter. Arguably bringing the issue estoppel motion on an interlocutory basis may be to subject the Appellant to a different evidentiary and procedural regime than would apply if dealt with at the trial of the issue as anticipated in the Reply. In the latter case there are examinations for discovery that might bear to the record being relied on by the Respondent and affidavit evidence may not be permitted as it is under section 71 of the Rules.[6] The Appellant relies on these differences to the extent he argues that the Respondent's issue estoppel motion should be dealt with at trial where he hopes to defeat its application if he is not successful in defeating it in these proceedings.

[10]     The Appellant's objective to defeat the application of the doctrine of issue estoppel either in this proceeding or at the hearing of the appeal and his objections to the references in both the Reply and the CRA officer's affidavit to the criminal prosecutions, are founded in his firm belief that he was wrongfully convicted of most if not all charges for which he was indicted. He asserts for example that ill health prevented him from testifying at his own trial and now being able to testify, there is new evidence.[7] He asserts that he can bring medical evidence on the point. He asserts the denial of leave to appeal to the Supreme Court of Canada was grounded in his failure to bring a timely application due to being in prison. He asserts in essence that the Respondent's case for issue estoppel forecloses his pursuing his position that he was wrongfully convicted and of course it could do just that as that is its purpose. That is, if issue estoppel applies, it applies on the basis of meeting criterion for its application and on that basis will ensure against the Appellant doing what he is attempting to do. In establishing that the criterion for applying the doctrine are met, the Respondent relies on the record of the prior proceedings and properly so according to authorities. [8] That is, if the Respondent's issue estoppel motion is not prematurely brought as an interlocutory motion, it is entirely appropriate to include in the Affidavit filed in support of the motion all particulars that constitute the record upon which it relies. Such records are material to the issue. If the motion is premature, such records would go before the trial judge being material to the issue estoppel determination sought in the Reply. That is, one pleading of the record has to be allowed, either in the Reply in anticipation of having issue estoppel decided at trial or in the affidavit swearing to records produced if the issue is to be dealt with on an interlocutory motion. It is simply a question of which is the appropriate procedure in the circumstances and this it seems turns in part at least on whether the evidentiary and procedural regime associated with interlocutory motions is prejudicial to the Appellant relative to the regime associated with matters dealt with at trial.

[11]     On this point I referred Respondent's counsel to section 58 of the Rules which I suggest is the normal Rule governing interlocutory motions where a preliminary determination is requested to dispose of all or part of the proceeding, or to substantially shorten the hearing or save costs. As anticipated by subsection 58(2) and as reflected by the authorities, that Rule permits such motions only on questions that require no evidence.[9] Jurchison confirms that section 58 is not intended as an easily accessible alternative to a trial of a complex and contentious dispute and McLarty confirms that preliminary motions cannot be dealt with under paragraph 58(1)(a) if there is any dispute as to a material fact. Determining from the record of a criminal trial what facts have been determined is itself a fact-finding mission.[10] There is a legitimate dispute in the case at bar as to what facts have already been necessarily decided in the criminal trial. That is, the Respondent's issue estoppel motion requires consideration of a considerable amount of evidence. The point then is that the Respondent should not be able to slip into a preliminary motions forum by bringing the motion under section 53 of the Rules as opposed to section 58. While the Respondent relies on other authorities (to which I will refer later in these Reasons) to distinguish motions asserting abuse of process under section 53 of the Rules, such authorities do not make a clear statement as to when an application might more appropriately come before a preliminary motions judge under section 53 as opposed to section 58, particularly where reasons for dealing with the asserted abuse at an early stage rather than later at trial is to shorten the hearing and save costs which are the very concerns addressed by paragraph 58(1)(a) of the Rules. The reason for choosing to bring the motion under section 53 cannot in the circumstances of the case at bar be said to relate primarily to preventing adverse perceptions of the administration of justice as that perception can readily be addressed, and more carefully addressed, on the hearing of the appeal.

[12]     On the other hand the records upon which the Respondent relies are transcripts from the criminal proceedings an examination of which may prove sufficient particularly since there is no question as to their authenticity. That is, it is possible that those records speak for themselves in the determination of those facts that should at law be properly regarded as having been finally determined by the prior proceedings and in that sense a pre-trial hearing might be justified. The Respondent relies on that possibility as the basis for its position that raising the issue estoppel on an interlocutory motion is appropriate. After all, the point of res judicata and issue estoppel is to avoid the re-litigation of a matter already adjudicated which is to suggest that affording the benefits of the trial process to the same litigant a second time on the same issue might well be an abuse of process. As such, I agree that the Court should not automatically refuse to consider such issue on an interlocutory basis. Indeed, the Respondent has produced a number of cases and materials that support the view that issue estoppel is an issue that can and should be dealt with as a preliminary matter.

[13]     In Boehm v. R.[11] a motion to strike a Statement of Claim filed with the Federal Court was considered by a prothonotary of that Court. The motion was based on issue estoppel and made under the umbrella of a provision of the Federal Court Rules dealing with abuse of process. Such Rule permitted affidavit evidence. But for the application of such Rule, the rule under which the motion to strike was brought would have allowed no evidence to be brought at all. This case is cited as authority that motions to strike on grounds of abuse of process are properly brought as preliminary or interlocutory motions even where the underlying basis for the motion is issue estoppel (a form of abuse of process).

[14]     In Freedman et al. v. Reemark SterlingI Ltd.[12] the finding of a motions judge that issue estoppel or abuse of process bound a party to the litigation was upheld by the Ontario Court of Appeal. The inference is that the Ontario Court of Appeal approves that motions judges can hear issue estoppel motions.

[15]     In Bright v. Bright,[13]Willmer J. remarked at page 278 that the proper way to deal with an application to strike allegations of cruelty in a petition for constructive desertion in a matrimonial proceeding which followed a failed petition alleging cruelty and adultery would be to make the application in chambers before the trial so as to get these questions decided without waiting for the trial and without incurring the expense of collecting the witnesses and making all the other preparations for trial. That is, there is authority for the Respondent's position that it is more appropriate than not to make applications prior to the hearing of an appeal where circumstances permit adjudication of whether the doctrine of issue estoppel applies.[14]

[16]     In Neebv. R.[15] an application to strike all or part of an appeal based on the doctrine of issue estoppel was considered where the appellant had been convicted of tax evasion. The application was made on a preliminary motion, however that preliminary motion was made at the beginning of the trial before the judge assigned to hear the appeal. That is, while it was dealt with as a preliminary motion, it does not appear to have been dealt with as an interlocutory motion subject to special evidentiary rules. Aside from the potential interest in this case from a procedural point of view, I note that in respect of the substantive issue the case is authority for saying that prior criminal convictions for tax evasion should not, generally speaking at least, create a barrier either under the doctrine of issue estoppel or abuse of process to appellants coming to this Court to appeal an assessment of income tax since this is the only court that has exclusive jurisdiction to hear and consider appeals from such assessments. I also note that this case raises questions as to the identity of issues which is also of concern in the case at bar. That is, the legitimate dispute in the case at bar as to what facts have already been determined by the prior proceedings raises questions as to the identity of issues.

[17]     In the case of Sarraf v. M.N.R.[16] it appears that Justice Bell granted a motion for an Order that the Appellant be estopped from proceeding with appeals on the basis of issue estoppel arising from a conviction for tax evasion. In that case the Respondent adduced evidence through an official of the Department of National Revenue as well as through that official's affidavit. While the case does not deal with evidentiary rules relating to the motion, it does appear, nonetheless, to be authority for the Respondent's position that it is appropriate to bring the subject motion to strike as a preliminary motion in reliance on an affidavit.

[18]     In Rogic et al. v. The Queen[17] Justice Bell heard a motion for a determination of a question of law pursuant to paragraph 58(1)(a) of the Rules as to the application of the doctrine of issue estoppel. He allowed the appeals on the basis that issue estoppel applied.

[19]     While these authorities favour the Respondent's position, they raise, but do not in my view address, another problem associated with dealing with the Respondent's issue estoppel motion on an interlocutory motion. That is the problem of a motions judge purporting to bind the judge yet to be assigned to hear the appeal as to a finding of fact. Respondent's issue estoppel motion asks me to preclude litigation before the trial judge on the finding of material but disputed facts; namely, what facts the jury necessarily relied on in convicting the Appellant in the prior criminal proceedings. Respondent's issue estoppel motion asks me to apply the doctrine of issue estoppel to limit findings of fact as opposed to applying it to finally dispose of the appeal which is to bifurcate the appeal. I see no need to do that in the case at bar. I think, as a general rule, that it should be avoided. Findings of fact including findings of previously found facts are best left to the trial judge.

[20]     That is, unless, on the preliminary motion, the appeal can be finally disposed of by a finding that issue estoppel applies so as to warrant the dismissal or allowance of the appeal as occurred in Sarraf and Rogic, it seems that applying issue estoppel does little more than split an appeal so as to purport to tie the hands of the judge yet to be assigned to hear the appeal. The better approach in such cases is surely to allow the judge hearing the appeal to make the determination as to the impact of the record of a criminal proceeding on the findings of fact that may dictate the outcome of the appeal. This can be seen in Schmidt v. The Queen[18] where Justice Rip hearing the appeal relied in respect of one reassessment on the criminal trial record to dismiss the appeal and refused to rely on it in respect of another reassessment. Such distinctions were made by Justice Rip after all the evidence was in and considered. Similarly in Mike Adams et al. v. The Queen[19] and Nick Adams v. The Queen[20] Bowman J. (as he then was) on hearing the appeals applied issue estoppel in one case as the basis for dismissing the appeal and in the other case as the basis to allow the appeal where both applications relied on findings arising from criminal convictions.

[21]     At this point then it is important to underline that the Respondent's estoppel motion is not for the dismissal of the appeal. Rather it is for a finding that the Appellant be estopped from denying certain facts. It asks that the Appellant be estopped from appealing the reassessments "in so far as" they "include in his income" specified amounts in respect of a particular year which is to prevent the taxpayer from asserting certain facts which a trial judge may or may not find, on hearing all the evidence as a whole, are issue estopped based on whether the requirements for the application of issue estoppel such as identity of issues have been met.[21] Based on the reasoning that dictates against bifurcating the fact-finding aspect of an appeal, even a clear record to support the Respondent's particular requests would not, in my view, generally warrant granting the Respondent's issue estoppel motion. The case against doing so is even stronger in the case at bar, as the record does not, in my view, clearly warrant the granting of the motion on its terms given the dispute as between the necessary findings to be drawn from the criminal proceedings and the findings that the Respondent's motion seeks to enforce. The hearing judge would be in a better position to make this determination after considering the impact of such things as expenses against receipts described as "income" in the criminal proceedings or the impact of the criminal charge relating to the failure to declare $3,000,000.00 in "any of the taxation years 1993, 1994, 1995 and 1996".

[22]     It is not necessary however for me to come to any conclusions on such questions.

[23]     Such questions will be for the trial judge as I am denying the Respondent's issue estoppel motion for all of the reasons set out above.

[24]     Before concluding however I would like to address the Respondent's argument that his reliance on the doctrine of abuse of process affords me a wider discretion which I am asked to exercise in the interests of maintaining the integrity of the legal and judicial system. Respondent's counsel relies on Toronto (City) v. Canadian Unionof Public Employees[22]to support his position. Respondent's counsel argues that the doctrine of abuse of process can be applied with fewer constraints than the doctrine of res judicata or issue estoppel which have strict parameters and settled rules. This is acknowledged in Toronto(City) at paragraph 38. Also at paragraph 42 of Toronto(City) Arbour J., speaking for the majority, stated that the attraction of the doctrine of abuse of process is that it is unencumbered by the specific requirements of res judicata while offering the discretion to prevent re-litigation essentially for the purpose of preserving the integrity of the Court's process. Arbour J. remarks at paragraph 43 as follows:

Critics of that approach have argued that when an abuse of process is used as a proxy for issue estoppel, it obscures the question while adding nothing but a vague sense of discretion. I disagree. At least in the context before us, namely, an attempt to re-litigate a criminal conviction, I believe that abuse of process is a doctrine much more responsive to the real concerns at play. In all of its applications, the primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions of courts ... the focus is less on the interest of parties and more on the integrity of judicial decision-making as a branch of the administration of justice. In a case such as the present one, it is that concern that compels a bar against re-litigation, more than any sense of unfairness to a party being called twice to put its case forward ...

[25]     At paragraph 51 of Toronto (City) Arbour J. notes that focusing on the integrity of the adjudicative process permits three preliminary observations, namely: there can be no assumption that re-litigation will yield a more accurate result than the original proceeding; if the same result is reached in the subsequent proceeding the re-litigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses; and, that if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality. At paragraph 54 she commends the use of abuse of process to prevent re-litigation of a criminal conviction on the basis that casting doubt over the validity of a criminal conviction is a very serious matter. While the administration of justice must equip itself with all legitimate means to prevent wrongful convictions and to address any possibility of such occurrence after the fact, collateral attacks and re-litigation are not appropriate methods of such redress since they inordinately tax the adjudicative process while doing nothing to ensure more trustworthy results.

[26]     While all these remarks and insights support the application of the abuse of process doctrine on a broader basis than that applied to the doctrine of issue estoppel particularly in cases attempting to re-litigate criminal convictions, they do not support condemning an approach which is to defer the question to the judge hearing the appeal. I am not persuaded that the integrity of the legal system and the adjudicative function of the Courts are struck a blow by my exercising my discretion not to grant the Respondent's issue estoppel motion. I have left it to the trial judge to reconsider the issue which will ultimately ensure that the integrity of the judicial system is preserved without my compromising procedural and evidentiary rules or the principles for the application of issue estoppel and without taking the factual decision-making process from where it belongs in a case like this - with the judge hearing the appeal. The only extra re-litigation burden on the system derives from the motion having been made on an interlocutory basis and perhaps from my ponderous reasons for denying it.

[27]     For these reasons then:

          (a)       the Appellant's motion to strike from the Reply is denied;

(b)      the Appellant's motion to strike from the Affidavit is redundant and denied;

(c)      the Appellant's motion for an extension to file an Answer is allowed. The Appellant shall have 60 days from the date of this Order to file an Answer;

(d)      the Respondent's motion to strike paragraphs 21, 22 and the last sentence of paragraph 39 of the Notice of Appeal is granted; and

          (e)       the Respondent's estoppel motion is denied.

         

[28]     Each party shall bear their own costs.

Signed at Ottawa, Canada, this 13th day of April 2005.

"J.E. Hershfield"

Hershfield J.

CITATION:

2005TCC250

COURT FILE NO.:

2003-3065(IT)G

STYLE OF CAUSE:

Donald Neil MacIver and Her Majesty the Queen

PLACE OF HEARING:

Winnipeg, Manitoba

DATES OF HEARING:

December 13, 2004 and March 30, 2005

REASONS FOR ORDER BY:

The Honourable Justice J.E. Hershfield

DATE OF REASONS FOR ORDER:

April 13, 2005

APPEARANCES:

For the Appellant:

The Appellant himself

Counsel for the Respondent:

Perry Derksen

COUNSEL OF RECORD:

For the Appellant:

Name:

Firm:

For the Respondent:

John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Canada

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