INCOME TAX |
Practice |
Grant v. Canada
A-449-01
2003 FCA 77, Strayer J.A.
13/2/03
9 pp.
Judicial review of decision of Tax Court of Canada rendered after trial conducted under informal procedure--Pursuant to separation agreement, child support order, applicant in receipt of $4200 per year for child support--Applicant not including such amount in 1998, 1999 tax returns--Alleging filed election form T1157 to bring prior agreement, order under 1997 amendments to Income Tax Act--Ex-husband denying that it was his signature on form--Tax Court dismissing appeals from assessments including child support in income-- Applicant alleging denial of natural justice, procedural fairness because not provided with original form prior to hearing--No reviewable error--Record of Tax Court hearing not disclosing applicant ever requested disclosure of original form for examination by expert, or adjournment for purpose of calling such expert witness--Applicant did not appreciate should have taken such steps--However, not possible to have second hearing of appeal just to enable losing party to improve on presentation of case--Court cannot set aside decision for denial of fairness or natural justice if judge whose decision under review gave each party reasonable opportunity to state case and did not deny any proper request for production of documents or for adjournment to present evidence--Apparent from record Minister's counsel has on several occasions refused production or disclosure to applicant of documents relevant to applicant's appeal--Absence of discovery in informal procedure not excuse for denial of fairness--As authenticity of signature on election form issue taxpayer had to address before Tax Court, fairness required taxpayer be allowed to have expert examine document prior to hearing--Record not clearly demonstrating applicant denied that opportunity--Even if Income Tax Act, s. 241(1) applied to original form, not excuse for refusing access to it for inspection by taxpayer in appeal of reassessment where success of appeal depended on authencity of document-- Respondent entitled to refuse disclosure of expert's report once determined such report would not be put in evidence by respondent--Clear from applicant's affidavit in Tax Court that at least by time Minister confirmed reassessment, respondent believed ex-husband had not signed form as submitted by applicant--However, in Minister's amended notice of reply, no mention made of assumption election filed by applicant not in fact properly signed--In present case, no particular unfairness in result as applicant fully aware of position taken by Minister, that ex-husband would be called as witness, and already had burden of proving election made--Application dismissed--Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1, s. 241 (as am. by S.C. 1994, c. 7, Sch. VIII, s. 137).