Date: 20020530
Docket: A-168-01,A-169-01
Neutral citation: 2002 FCA 240
CORAM: DÉCARY J.A.
BETWEEN:
MARGOT ERDMANN
Applicant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Calgary, Alberta, on May 30, 2002.
Judgment delivered from the Bench at Calgary, Alberta, on May 30, 2002.
REASONS FOR JUDGMENT BY: ROTHSTEIN J.A.
Date: 20020530
Docket: A-168-01, A-169-01
Neutral citation: 2002 FCA 240
CORAM: DÉCARY J.A.
BETWEEN:
MARGOT ERDMANN
Applicant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Calgary, Alberta
on May 30, 2002)
[1] These are applications for judicial review of decisions of Beaubier T.C.J. in which he dismissed the applicant's appeals. The appeals in the Tax Court were under the Informal Procedure. The applicant alleges two errors by the Tax Court Judge.
[2] The first is that the Tax Court Judge wrongly denied the applicant the opportunity to amend her pleadings so as to raise an issue not originally included in her Notice of Appeal. However, the applicant made no request to amend her pleadings. It is true that the appeal was under the Informal Procedure of the Tax Court and that the applicant was not represented by a lawyer. It is also true that Tax Court Judges must be vigilant to ensure that unrepresented tax payers not be deprived of procedural fairness. See Poulton v R., [2002] T.C.J. No. 81, at paragraph 17 et seq.
[3] However, there is no obligation on the Tax Court Judge, without some initiative by the unrepresented litigant, to anticipate and suggest steps that the litigant might take to strengthen an appeal. Here, there was no request to amend pleadings. The Tax Court Judge was directing his attention to the issue before him. He had no obligation on his own initiative to enquire whether the applicant wished to amend her pleadings to raise a new issue.
[4] I do not say that the Tax Court Judge may not dispense with adherence to strict rules of procedure under the Informal Procedure, provided it does not result in unfairness. However, a judge cannot be faulted because he does not anticipate or recommend a step a litigant might take.
[5] The second alleged error is that the Tax Court Judge wrongly denied the applicant the opportunity to introduce evidence. It appears that the evidence at issue was valuation of real property evidence. The applicant had called an expert witness who had testified to valuation. She complains that she was denied the opportunity to have other valuation evidence put in by another witness.
[6] The valuation evidence in question would have been expert evidence in that it was not evidence of the witness's own personal knowledge. Section 7 of the Tax Court of Canada Rules (Informal Procedure) sets forth the procedure for introducing expert evidence:
| 7. (1) A party who intends to call an expert witness at the hearing of an appeal shall, not less than 10 days before the commencement of the hearing, file at the Registry and serve on the other parties a report, signed by the expert, setting out the expert's name, address and qualifications and the substance of the expert's testimony. (2) An expert witness may not testify, except with leave of the presiding judge, if subsection (1) has not been satisfied. |
7. (1) Une partie qui désire produire un témoin expert à l'audition d'un appel doit déposer au greffe et signifier à chacune des autres parties un rapport, au moins 10 jours avant la date de l'audition de l'appel. Ce rapport, signé par l'expert, doit indiquer les nom, adresse, titres et compétences de ce dernier et exposer l'essentiel du témoignage que l'expert rendra à l'audience. (2) Sauf avec la permission du juge, un témoin expert ne peut témoigner si le paragraphe (1) n'a pas été satisfait. |
[7] In the case of the additional witness here, subsection 7(1) was not complied with. It was, therefore, within the discretion of the Tax Court Judge as to whether to allow that witness to testify. The applicant has not demonstrated any error on the part of the Tax Court Judge that would permit this Court to interfere with his exercise of discretion in refusing the additional evidence.
[8] The applicant seems to suggest that the evidence should have been admitted simply because the case was under the Informal Procedure. However, as respondent's counsel pointed out, merely because the Informal Procedure applies does not mean that no rules apply. As indicated, section 7 is a rule under the Informal Procedure and it provides a process for the introduction of expert evidence. The decision of the Tax Court Judge to refuse to admit the additional evidence was within the discretion conferred upon him by subsection 7(2).
[9] The respondent makes the further argument that the evidence the applicant sought to introduce would not have assisted the applicant as her original expert gave valuation evidence that more than supported the Minister's assessment. It is not necessary to deal with this argument.
[10] These applications will be dismissed with one set of costs. A true copy of these reasons will be placed on Court file A-169-01.
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-168-01, A-169-01
STYLE OF CAUSE: Margot Erdmann and Her Majesty the Queen
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: May 30, 2002
REASONS FOR
JUDGMENT: Rothstein J.A.
DATED: May 30, 2002
APPEARANCES:
Mr. Matthew Clark FOR THE APPELLANT
Ms. Belinda Schmid FOR THE RESPONDENT
SOLICITORS OF RECORD:
Shea Nerland Calnan FOR THE APPELLANT
Barristers & Solicitors
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada