http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/142768/index.do
Buhler Versatile Inc. v. Canada (March 1, 2016 – 2016 FCA 68, Dawson, Ryer (author), Demontigny JJ. A.).
Précis: This is a decision on an interlocutory matter arising out of an SRED credit appeal. During the course of pre-appeal negotiations with CRA the taxpayer provided CRA with a letter together with 5 binders of documents (which were referred to in the letter). The taxpayer did not list the binders in its list of documents and declined to produce the binders on discovery. The Tax Court ordered the production of the 5 binders and the taxpayer appealed that decision to the Federal Court of Appeal. The Court of Appeal dismissed the appeal from the bench, with costs.
Decision: The facts were simple:
[3] In an attempt to persuade the Canada Revenue Agency Appeals Division (the “Appeals Division”) to vary or vacate the Assessment, the Taxpayer made a lengthy submission to it by correspondence dated October 21, 2011. That submission consisted of a letter signed by the Chief Financial Officer of the Taxpayer (the “CFO Letter”) and “relevant supporting documentation” that the Taxpayer provided in the Five Binders. The CFO Letter makes references to the materials in the Five Binders (Appeal Book at pages 68-70).
[4] The Appeals Division considered the CFO Letter and the Five Binders, but nonetheless confirmed the Assessment. The Five Binders were returned to the Taxpayer.
[5] In pursuing its appeal to the Tax Court of Canada, the Taxpayer prepared a List of Documents, as required by Rule 81 of the Tax Court Rules. In it, the Taxpayer included the CFO Letter as document number 262 (“Document Number 262”) but did not specifically mention the Five Binders.
The Court of Appeal was not persuaded by the taxpayer’s arguments:
[10] The issue in this appeal is whether the Judge committed a palpable and overriding error when he concluded that Document Number 262 constituted a single document comprised of both the CFO Letter and the Five Binders.
[11] In our view, this conclusion was open to the Judge and he made no palpable and overriding error in reaching it. It is apparent that the CFO Letter itself makes reference to the materials in the Five Binders in a number of instances and that the CFO Letter would not have constituted a complete submission without those materials.
[12] In our view, this is sufficient to deal with the appeal. However, we wish to observe that the Taxpayer’s assertion that the Judge committed an error of law by considering hearsay evidence is without merit. While counsel for the Taxpayer asserts that he made “strenuous objections” to the alleged admission of hearsay evidence, the transcript in the record reveals that no such objection was expressly made to the Judge. Moreover, as Justice Webb observed in an application made to him to determine the contents of the Appeal Book, the Taxpayer’s notice of appeal to this Court similarly makes no mention of an objection to the admission of hearsay evidence. In the Crown’s motion, the affidavit of Mr. Keith Chrystall was the only evidence tendered to the Judge. It was admissible by virtue of Rule 72 of the Tax Court Rules, which provides that affidavits on motions may be based upon information and belief provided that the basis thereof is stipulated. In any event, the evidence that the Taxpayer’s counsel hoped to adduce if the Appeals Officer had been produced, would have had no bearing on the decision of the Judge that Document Number 262 consisted of both the CFO Letter and the Five Binders.
As a result the appeal was dismissed from the bench with costs.