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Docket: 2001-2324(IT)G |
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BETWEEN: |
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ALLAN ORCHESON, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
____________________________________________________________________
Motion heard on common evidence with the motion of Lorna Orcheson, 2001-2325(IT)G, on February 25, 2003, at Toronto, Ontario,
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Before: The Honourable Judge C.H. McArthur |
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Appearances: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent: |
Franco Calabrese |
____________________________________________________________________
ORDER
Upon motion by the Appellant for an Order permitting oral examination for discovery of D.W. Browne, an auditor with Canada Customs and Revenue Agency and for written examination for discovery of Alice Shields, Director of the Toronto Centre Tax Services Office of CCRA;
And upon reading the pleadings, the Appellant's material in support of the motion, and the Respondent's written submissions;
And upon hearing the Appellant and counsel for the Respondent;
It is ordered that the motion is dismissed with one set of costs to the Respondent fixed at $200.
Signed at Ottawa, Canada, this 14th day of April, 2003.
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"C.H. McArthur" |
J.T.C.C.
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Docket: 2001-2325(IT)G |
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BETWEEN: |
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LORNA ORCHESON, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
____________________________________________________________________
Motion heard on common evidence with the motion of Allan Orcheson, 2001-2324(IT)G, on February 25, 2003, at Toronto, Ontario,
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Before: The Honourable Judge C.H. McArthur |
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Appearances: |
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For the Appellant: |
The Appellant herself |
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Counsel for the Respondent: |
Franco Calabrese |
____________________________________________________________________
ORDER
Upon motion by the Appellant for an Order permitting oral examination for discovery of D.W. Browne, an auditor with Canada Customs and Revenue Agency and for written examination for discovery of Alice Shields, Director of the Toronto Centre Tax Services Office of CCRA;
And upon reading the pleadings, the Appellant's material in support of the motion, and the Respondent's written submissions;
And upon hearing the Appellant and counsel for the Respondent;
It is ordered that the motion is dismissed with one set of costs to the Respondent fixed at $200.
Signed at Ottawa, Canada, this 14th day of April, 2003.
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"C.H. McArthur" |
J.T.C.C.
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Citation: 2003TCC269 |
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Date: 20030414 |
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Docket: 2001-2324(IT)G 2001-2325(IT)G |
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BETWEEN: |
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ALLAN ORCHESON and LORNA ORCHESON, |
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Appellants, |
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And |
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HER MAJESTY THE QUEEN, |
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Respondent. |
REASONS FOR ORDER
McArthur J.
[1] The Appellants' motions request an Order permitting the oral examination for discovery of D.W. Browne, an auditor with Canada Customs and Revenue Agency and written examinations for discovery of Alice Shields, Director of the Toronto Centre Tax Services Office of CCRA. The Appellants' position is best set out in the affidavit of Allan Orcheson which includes the following:
For a full and fair disclosure, the oral examination for discovery can best be conducted with D.W. Browne, the auditor. He knows the reasons he used in disallowing my legitimate business expenses. His work gave rise to the Notices of Reassessment and my Amended Notice of Appeal. It would cause significantly prejudice if we could not examine D. Browne or a knowledgeable alternative who is familiar with this case. ...
The auditor's perception of the scope of my business operations which included the property at 311 Lake Drive North, a viewpoint he expressed in writing and held prior to his commencement of this most recent audit, that perception is inconsistent with his current exclusion of this property. Furthermore, his audit findings are in conflict with relevant and related assessments issued by CCRA for taxation years both prior and after his audit period. He or the aforementioned alternative should be held accountable in an oral examination for an apparent arbitrary treatment of my business operations. ...
An oral examination of D. Browne would provide a more full and fair disclosure. The auditor's written work is unreliable in our view. He issued an audit report stating that he would reassess within 30 days of the date of his letter. He did not proceed with his adjustments as he stated. I had to obtain compliance elsewhere. As we are unable to confirm D. Browne's current employment with CCRA, a knowledgeable alternative may be able to provide verbal clarification as to the reasons for the delay in reassessing our file by CCRA. ...
[2] Subsections 17.3(1), (2) and (3) of the Tax Court of Canada Act provide:
17.3(1) Where the aggregate of all amounts in issue in an appeal under the Income Tax Act is $25,000 or less, or where the amount of the loss that is determined under subsection 152(1.1) of that Act and that is in issue is $50,000 or less, an oral examination for discovery shall not be held unless the parties consent thereto or unless one of the parties applies therefor and the Court is of the opinion that the case could not properly be conducted without that examination for discovery.
17.3(2) In considering an application under subsection (1), the Court may consider the extent to which the appeal is likely to affect any other appeal of the party who instituted the appeal or relates to an issue that is common to a group or class of persons.
17.3(3) The Court shall order an oral examination for discovery in an appeal referred to in subsection (1), on the request of one of the parties, where the party making the request agrees to submit to an oral examination for discovery by the other party and to pay the costs in respect of that examination for discovery of that other party in accordance with the tariff of costs set out in the rules of Court.
[3] The Respondent's position is set out in the written submissions submitted and includes:
(i) pursuant to the Tax Court of Canada Act (the "TCCA"), the appellants are not entitled to conduct oral examinations for discovery, and leave for oral examinations for discoveries should not be granted in these appeals;
(ii) pursuant to the Tax Court of Canada Rules (General Procedure) (the "General Procedure Rules"), the Deputy Attorney General is entitled to nominate the representative to be examined on behalf of the Respondent and the appellants are not entitled, at this time, to an order permitting them to examine particular representatives on behalf of the Respondent; and
(iii) pursuant to the General Procedure Rules, each Appellant is only entitled to conduct only one examination for discovery of the Respondent and leave to conduct second examinations for discovery should only be granted, if at all, after the first examinations for discovery have been completed and only in appropriate cases.
[4] The Appellants are not interested in an Order pursuant to subsection 17.3(3) of the Tax Court of Canada Act whereby they would be required to pay the costs of the examination for discovery.
[5] There is no question that the aggregate of all amounts in issue is under $25,000 and the amount of loss is less than $50,000 as provided for in subsection 17.3(1). In fact, the amounts under appeal in each year come within the informal procedure limits. The amount of tax in dispute in each year is as follows:[1]
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Taxation Year |
Federal Tax in Dispute Lorna Orcheson |
Federal Tax in Dispute Allan Orcheson
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1995 |
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$825.42 |
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1996 |
$741.35 |
$1,327.40 |
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1997 |
$2,972.71 |
$2,642.58 |
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1998 |
$5,031.19 |
$2,846.45 |
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1999 |
$2,912.14 |
$7,936.35 |
[6] The appeals concern the taxation years 1995, 1996, 1997, 1998 and 1999. The issue is whether the Appellants are entitled to deduct expenses for rental cottages owned jointly by them in excess of those expenses allowed by the Minister of National Revenue.
[7] Subsection 17.3(1) provides that an oral examination for discovery shall not be held unless the Court is of the opinion that the cases could not be properly conducted without oral examinations. From a reading of the pleadings, the facts are not complex and the Respondent's position appears to be clearly set out in the Replies to the Notices of Appeal. The Respondent is prepared to permit a written examination of Alice Shields.
[8] The Appellants have not satisfied me that their appeals could not be properly conducted without the oral examination of D.W. Browne.
[9] Subsection 93(3) of the Tax Court of Canada Rules (General Procedure) provides that the Crown shall select a knowledgeable officer to be examined. Only after that party has been examined may the Court provide for the examination of another person.[2]
[10] The Appellants are premature because the written examinations for discovery of Alice Shields have not been conducted and they have no basis to conclude, at this time, that Alice Shields is not knowledgeable. At this stage, there is insufficient evidence to conclude that the cases could not be properly conducted with the oral examination of Alice Shields.
[11] The motions are dismissed with one set of costs to the Respondent fixed at $200.
Signed at Ottawa, Canada, this 14th day of April, 2003.
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"Cameron H. McArthur" |
J.T.C.C.
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CITATION: |
2003TCC269 |
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COURT FILE NOS.: |
2001-2324(IT)G and 2001-2325(IT)G |
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STYLE OF CAUSE: |
Allan Orcheson and Lorna Orcheson and Her Majesty the Queen |
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PLACE OF HEARING: |
Toronto, Ontario |
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DATE OF HEARING: |
February 25, 2003 |
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REASONS FOR ORDER BY: |
The Honourable Judge C.H. McArthur |
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DATE OF ORDER: |
April 14, 2003 |
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APPEARANCES: |
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Counsel for the Appellants: |
The Appellants themselves |
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Counsel for the Respondent: |
Franco Calabrese |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
N/A |
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Firm: |
N/A |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |