Can-Am Realty Ltd. v. Canada
T-3407-90
Hargrave P.
13/12/96
7 pp.
Motion for extension of time within which to appeal order-Motion granted-Action and seven companion actions, appeals from assessment under former Income Tax Act-At issue, reopening of four statute-barred taxation years under Act-To reopen statute-barred years, Minister had onus of showing misrepresentation attributable to neglect, carelessness or willful default in filing of tax returns-Motion on point presented during trial, Trial Judge denying motion and subsequently produced reasons-Plaintiffs say reasons not only not responsive, but also wrong at law in requiring plaintiff must go first-Ruling not appealed immediately as rulings cannot form subject matter of appeals until judgment pronounced on matters put in issue by pleadings-In Appeal Books, material relating to procedural point and resulting reasons of Trial Judge missing as matter not considered evidentiary procedural point dealt with during trial, but rather interlocutory motion which had not been appealed-Counsel for plaintiff brought motion to F.C.A. to include missing material in Appeal Book-Motion dismissed on ground motion appealed without extension of time-Plaintiff arguing neither he nor his client ought to be prejudiced-Applicable principles found in Noel & Lewis Holdings Ltd. v. Canada (1986), 5 F.T.R. 166 (F.C.T.D.)-Plaintiffs always intended to appeal-Plaintiffs have reasonably arguable case-Finally, in all circumstances, in interests of justice, not only from point of view of plaintiffs but also to settle, in face of apparently conflicting case law in Court on reopening statute-barred taxation years, whether it flows from onus on Minister, that he who alleges fraud or misrepresentation must prove it, that Minister must proceed first at trial-Income Tax Act, S.C. 1970-71-72, c. 63.