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Appeals - Appeal Book. Hudson v. Canada
In Hudson v. Canada (Fed CA, 2024) the Federal Court of Appeal considers an appeal motion for fresh evidence, and in so doing draws a distinction between fresh evidence and the inclusion of documents in the appeal book:[1] In the present appeal from a judgment of the Tax Court of Canada, the appellant moves for an Order that:1. The Court grant the appellant leave to adduce fresh evidence pursuant to Rule 351 of the Federal Courts Rules, S.O.R./98-106, as follows: ... ....
II. Fresh Evidence
[6] The parties agree that a party seeking to adduce fresh evidence must establish that the evidence: (1) could not have been adduced at trial with the exercise of due diligence; (2) is relevant in that it bears on a decisive or potentially decisive issue on appeal; (3) is credible in the sense that it is reasonably capable of belief; and (4) is such that, if believed, could reasonably have affected the result in the court below; and that, if the evidence fails to meet the foregoing criteria, the Court still possesses a residual discretion to admit the evidence on appeal, though such discretion should be exercised sparingly and only in the clearest of cases, where the interests of justice so require (see Coady v. Canada (Royal Mounted Police), 2019 FCA 102 at para. 3).
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[10] I agree with the respondent that fresh evidence pursuant to Rule 351 should not be allowed. The appellant was aware of the importance of the tax returns and Dr. Raynor’s letters and has not convinced me that she exercised due diligence in introducing them into evidence. She points to a trial exhibit as evidence of Dr. Raynor’s vacation, but she does not point to any exchange with the Tax Court in which she asserted the necessity of relying on Dr. Raynor’s letters as hearsay evidence because of her unavailability. The appellant also does not adequately document her allegation that the Tax Court initially indicated that she could introduce Dr. Raynor’s letters through her testimony. Finally, I am also not convinced by the appellant’s bald allegation that she could not have introduced the B.C. Minister of Finance document as evidence at trial with the exercise of due diligence.
[11] Nevertheless, the appellant alleges in her notice of appeal that the Tax Court erred in refusing to accept at least the tax documents and Dr. Raynor’s letters as evidence. In order for this Court to be in a position to determine whether the Tax Court erred in this respect, it will be necessary to have reference to these documents. Therefore, though they will not be accepted as fresh evidence, they should be included in the appeal book. . Chad v. Canada (National Revenue)
In Chad v. Canada (National Revenue) (Fed CA, 2024) the Federal Court of Appeal considered a motion regarding the contents of an appeal book, here in an appeal of a decision that "struck, without leave to amend, an amended notice of application" as it was "so clearly improper as to be bereft of any possibility of success":[4] The parties appear to agree that the content of the appeal book is to be determined in accordance with Rules 343(2) and 344(1), and jurisprudence related thereto. Rule 343(2) provides that the appeal book should include "“only such documents, exhibits and transcripts as are required to dispose of the issues on appeal.”" Rule 344(1) provides as follows:344 (1) An appeal book shall contain, on consecutively numbered pages and in the following order,
344 (1) Le dossier d’appel contient, sur des pages numérotées consécutivement, les documents ci-après dans l’ordre suivant:
(a) a table of contents describing each document;
(a) une table des matières désignant chaque document;
(b) the notice of appeal and any notice of cross-appeal;
(b) l’avis d’appel et, le cas échéant, l’avis d’appel incident;
(c) the order appealed from, as signed and entered, and any reasons, including dissenting reasons, given in respect of that order;
(c) l’ordonnance portée en appel, telle qu’elle a été signée et inscrite ainsi que les motifs, le cas échéant, y compris toute dissidence;
(d) the originating document, any other pleadings and any other document in the first instance that defines the issues in the appeal;
d) l’acte introductif d’instance, les autres actes de procédure et tout autre document déposé dans la première instance qui définit les questions en litige dans l’appel;
(e) subject to subsection (2), all documents, exhibits and transcripts agreed on under subsection 343(1) or ordered to be included on a motion under subsection 343(3);
(e) sous réserve du paragraphe (2), les documents, pièces et transcriptions énumérés dans l’entente visée au paragraphe 343(1) ou dans l’ordonnance qui en tient lieu;
(f) any order made in respect of the conduct of the appeal;
(f) toute ordonnance relative au déroulement de l’appel;
(g) any other document relevant to the appeal;
(g) tout autre document pertinent;
(h) an agreement reached under subsection 343(1) as to the contents of the appeal book or an order made under subsection 343(3); and
(h) l’entente visée au paragraphe 343(1) ou l’ordonnance qui en tient lieu;
(i) a certificate in Form 344, signed by the appellant’s solicitor, stating that the contents of the appeal book are complete and legible.
(i) le certificat établi selon la formule 344, signé par l’avocat de l’appelant et attestant que le contenu du dossier d’appel est complet et lisible. II. The Transcript
[5] The Minister objects to the inclusion of the Transcript in the appeal book because it contains only legal argument, and is not required to dispose of the issues on appeal: Collins v. Canada, 2010 FCA 128 at para. 2. Mr. Chad argues that the Minister tendered evidence at the hearing during her submissions, to which Mr. Chad objected, and that the Transcript is therefore not limited to legal argument. The Minister counters that the alleged evidence was simply submissions in reply to Mr. Chad’s argument that a request for information under the Access to Information Act, R.S.C. 1985, c. A-1, would not be an adequate alternative remedy.
[6] Mr. Chad argues that the limitation on the content of the appeal book contemplated in Rule 343(2) is a flexible one, and a document should be included if a party "“has a reasonable basis for believing that it may wish to rely on that document to support one of its argument on appeal.”" Mr. Chad cites Bojangles' International, LLC v. Bojangles Café Ltd., 2006 FCA 291 at para. 6, in support of this argument, but he takes the quoted passage further than was intended. It was not intended to override the principle that the document in question must be required to dispose of the issues on appeal. The mere fact that a party may wish to rely on a document cannot be sufficient.
[7] I agree with the Minister that the Minister’s submissions in question at the hearing were not evidence. Moreover, there is no indication that they were treated as such by the Federal Court. The issue of whether a request for information under the Access to Information Act would be an adequate alternative remedy is a question of law. The Transcript is not required to decide that issue; nor am I convinced that it is required to decide any other issue on appeal.
[8] I accept Mr. Chad’s argument that doubt as to whether a document should be included in the appeal book should be resolved in favour of inclusion (West Vancouver v. British Columbia, 2005 FCA 281 at para. 4), but I have no doubt that the Transcript should not be included.
III. The Chad Affidavit
[9] The Minister objects to the inclusion of the Chad Affidavit in the appeal book, with the exception of the Demand Letter, because it was not put before the Federal Court by either party in its motion record, and was not relied on as evidence. The Minister acknowledges that Mr. Chad referred to his affidavit in his written submissions before the Federal Court, but notes that he did not include it in his motion record. The Minister also notes that Mr. Chad’s counsel acknowledged explicitly at the hearing before the Federal Court that he was not relying on the Chad Affidavit as evidence.
[10] Moreover, the Minister notes that, in the context of a motion to strike a notice of application, the facts therein are taken to be true: Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250 at para. 52. Therefore, no evidence is required to support those facts, either before the Federal Court or before this Court.
[11] Mr. Chad argues that his affidavit is required to counter the Minister’s submission, which was accepted by the Federal Court, that the amended notice of application "“largely includes bald and speculative allegations and conclusory statements which cannot support the relief sought”". Mr. Chad argues that he relies on his affidavit not for the truth of its contents, but as proof that the allegations were not unsupported.
[12] In my view, Mr. Chad’s argument cannot overcome the following facts (i) evidence is not required on a motion to strike, (ii) the Chad Affidavit was not submitted as evidence in the parties’ motion records, and (iii) Mr. Chad explicitly acknowledged that he was not relying on the Chad Affidavit as evidence.
[13] The Minister acknowledges that the Demand Letter should be included in the appeal book because it is referred to in the amended notice of application in issue. In reply, Mr. Chad argues that the Minister’s acknowledgement of the relevance of the Demand Letter to the present appeal must operate as an acknowledgement of the relevance of the rest of the Chad Affidavit. As he puts it, "“[w]hat is sauce for the goose is sauce for the gander.”" I find that expression misplaced in this context. It might apply if somehow the Minister’s case would be favoured by the inclusion of the Demand Letter in the appeal book, but I see no indication of that. In my view, the inclusion of the Demand Letter in the appeal book is not in dispute, but the inclusion of the rest of the Chad Affidavit is.
[14] I agree with the Minister that the bulk of the Chad Affidavit should be excluded from the appeal book because it is not in evidence. The Demand Letter should be included because its inclusion is not in dispute and because it is referred to in the amended notice of application.
IV. Conclusion
[15] For the foregoing reasons, I will order that the appeal book include the documents proposed by the Minister as listed in Schedule A to her responding motion record. I will also order that Mr. Chad pay the Minister’s costs of this motion in any event of the cause.
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