Précis: The taxpayer sought to strike those portions of the Crown’s reply that alleged she had failed to report a gain on the disposition of property in 2005 and in so doing made a misrepresentation attributable to neglect, carelessness or willful default. The taxpayer argued that misrepresentation was not raised during the assessment or objection process and those portions of the pleading should be struck on the basis that they may prejudice or delay the fair hearing of the appeal, are scandalous, frivolous or vexatious, or are otherwise an abuse of process of the Court. The Court denied the taxpayer’s motion on the basis that the motion was brought after the close of pleadings and after the taxpayer had agreed to a timetable Order. In so doing the Court relied upon Section 8 of the Tax Court of Canada Rules (General Procedure) (the “Rules) which provide, in part, that a party cannot, without the leave of the Court, attack a document based on an irregularity where the moving party has taken a fresh step in the proceeding after the impugned document was filed. In an evident expression of the Court’s displeasure the motion was dismissed with costs to the Crown in any event of the cause.
Drazin-Bendheim v. R. – TCC: Tax Court invokes “fresh step” rule and declines to strike portions of Crown’s ReplyPlus >