Date: 20020912
Docket: A-231-02
Neutral citation: 2002 FCA 322
Present: THE HONOURABLE JUSTICE SHARLOW
BETWEEN:
HUMANIST ASSOCIATION OF TORONTO
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on September 12, 2002.
REASONS FOR ORDER BY: SHARLOW J.A.
Date: 20020912
Docket: A-231-02
Neutral citation: 2002 FCA 322
Present: THE HONOURABLE JUSTICE SHARLOW
BETWEEN:
HUMANIST ASSOCIATION OF TORONTO
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
[1] The appellant has appealed, pursuant to paragraph 172(3)(a) of the Income Tax Act, R.S.C. 1986 (5th supp.), c. 1, the decision of the Minister of National Revenue to refuse to register it as a charitable organization. In accordance with the normal practice in such appeals, an appeal book has been prepared that is said to contain all of the documents that were before the Minister when the decision was made.
[2] The appellant seeks leave under Rule 351 of the Federal Court Rules, 1998, SOR/98-106, to permit evidence to be presented on the appeal. The Minister opposes the motion.
[3] Rule 351 reads as follows:
| 351. In special circumstances, the Court may grant leave to a party to present evidence on a question of fact. |
351. Dans des circonstances particulières, la Cour peut permettre à toute partie de présenter des éléments de preuve sur une question de fait. |
[4] I must consider whether the new evidence could with reasonable diligence have been discovered before the end of the trial, whether the evidence is credible, and whether the evidence is practically conclusive on the appeal: Frank Brunckhorst Co. v. Gainers Inc. et al., [1993] F.C.J. No. 874 (C.A.) (QL). Even if the three tests are not met, the evidence may be admitted if the interests of justice require it: Glaxo Wellcome plc v. Minister of National Revenue, (1998) 225 N.R. 28 (F.C.A.), Amchem Products Inc. et al. v. Workers' Compensation Board (B.C.) (1992), 192 N.R. 390 (S.C.C.).
[5] The appellant seeks to present the affidavit of Sheena Sharp sworn on July 19, 2002. According to the appellant, the affidavit will establish two facts. The first fact is that some of the documents that were before the Minister when the decision was made had not been submitted by the appellant and were not disclosed to the appellant for comment before the decision was made. The second fact is that organizations similar to the appellant have been registered as charitable organizations.
Reasonable diligence
[6] The Minister has not suggested that the appellant knew, prior to the Minister's decision, what documents were in the Minister's file. Therefore, the appellant cannot be said to have lacked diligence in failure to discover those documents before the Minister's decision was made.
[7] There is some force in the Minister's argument that the appellant could, with diligence, have presented the Minister with the particulars of organizations similar to itself that have been registered as charitable organizations. If the appellant had in fact suggested such comparisons before the Minister's decision was made, the Minister could have addressed his mind specifically to the issues of consistency of treatment that the appellant seeks to make in this appeal.
[8] However, I cannot accept that the Minister is unaware of the desirability of consistency in his decisions. The Minister must be taken to be aware of its own practices and prior decisions, and to know or have the means of knowing about the objects and activities of the organizations that the appellant now claims are similar to itself. In my view, if the Minister is somehow prejudiced by the failure of the appellant to present him earlier with evidence of those comparative organizations, the cure is not to deny the appellant's motion, but to permit the Minister to adduce reply evidence if he wishes to do so.
Credibility of the evidence
[9] The Minister has raised no concerns about the credibility of the evidence sought to be adduced.
Whether the evidence is practically conclusive
[10] The allegation that the Minister had before it documents that were not submitted by or disclosed to the appellant is typically raised in support of an argument of procedural unfairness. Here it seems that the appellant wishes to make that allegation so that the Court is aware of that fact and presumably can consider the Minister's decision in that light. One of the peculiar circumstances of this case, according to the appellant, is that some of the allegedly undisclosed material suggests that the Minister engaged in some efforts to compare certain other organizations with the appellant.
[11] The appellant's evidence as to the existence of apparently inconsistent decisions consists of information that certain organizations with names similar to that of the appellant have been registered, and assertions in the affidavit that the affiant believes those organizations to be similar to the appellant. That evidence, while somewhat weak, could be accepted as establishing the existence of inconsistent decisions by the Minister. However, that would not by itself establish that an error has been made in this case. It may be that the other decisions relate to facts that are distinguishable from the facts of this case, or it may be that there is an error in the other cases and not this one. Therefore, I cannot say that the existence of inconsistent decisions, even if proved, would be practically conclusive of the appeal. At the same time, however, I cannot say that the existence of inconsistent decisions is irrelevant. The best evidence on this point is probably in the hands of the Minister.
Conclusion
[12] This appears to me to be a case where, despite the existence of some doubt about whether the formal tests for the admission of new evidence of appeal have been met, the interests of justice would best be served by permitting the new evidence to be presented on appeal. For that reason, the motion will be granted, with leave to the Minister to adduce an affidavit in reply if he wishes to do so, subject to a deadline that will be stipulated in the order.
"K. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-231-02
STYLE OF CAUSE: HUMANIST ASSOCIATION OF TORONTO AND HER MAJESTY THE QUEEN
DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER BY: The Honourable Justice Sharlow
DATED: September 12, 2002
WRITTEN REPRESENTATIONS BY:
Kenneth P. Swan FOR THE APPELLANT
Roger Leclair FOR THE RESPONDENT
SOLICITORS OF RECORD:
KENNETH P. SWAN, BARRISTER FOR THE APPELLANT
TORONTO, ONTARIO
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OTTAWA, ONTARIO