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FEDERAL INCOME TAX - Appeals - Tax Court of Canada - Motions - Evidence on motions

Monday, May 01, 2017 @ 7:18 AM  

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Appeal by CBS Canada from a Tax Court decision striking an affidavit. CBS appealed the Minister's reassessment in respect of the application of certain non-capital losses to income in particular taxation years. Counsel for CBS proposed a settlement offer which included a schedule of CBS's losses. The parties finalized minutes of settlement that incorporated the schedule. Thereafter, the Minister concluded that no non-capital losses were available to CBS. CBS filed a motion to enforce the settlement. The deponent of the supporting affidavit was a lawyer within the firm representing CBS. The affidavit set out the events surrounding the purported settlement. During cross-examination by counsel for the Minister, the CBS deponent refused to answer certain questions on the ground of privilege. The Minister consequently moved to strike the CBS affidavit. The Tax Court determined that the central issue in the CBS motion to enforce the settlement was the accuracy, truth and origin of the non-capital losses outlined in the settlement schedule. The Tax Court found that the paucity of information surrounding the schedule due to the objections taken during cross-examination rendered the schedule's contents hearsay and unreliable. Due to the contentious and crucial nature of the schedule information, a representative of CBS was a more appropriate deponent than counsel. The limits on the Minister's ability to cross-examine counsel as the deponent gave rise to prejudice. The affidavit was accordingly struck. CBS appealed.

HELD: Appeal allowed. To the extent that the documents appended to the CBS affidavit were tendered to prove the existence and terms of the settlement between the parties, they were admissible subject to being tested by cross-examination. The Tax Court was correct to hold that, to the extent that the schedule was tendered to prove the truth and origin of the losses to which it referred, it was inadmissible except to the extent permitted by the principled approach to the hearsay rule. However, the Tax Court erred in attributing to CBS an intention to prove its non-capital losses by tendering the schedule. Such finding was inconsistent with the affidavit's simple assertion of facts leading to the settlement and the proof thereof in the form of the minutes of settlement. To the extent that the CBS deponent refused to answer questions regarding the losses in the schedule to the minutes, no prejudice accrued to the Minister regarding the issue of existence of a settlement. To the extent the affidavit was advanced to prove the fact of settlement, the choice of deponent was not inappropriate. The order below was set aside and the motion to strike was dismissed.

CBS Canada Holdings Co. v. Canada, [2017] F.C.J. No. 347, Federal Court of Appeal, J.D.D. Pelletier, D.J. Rennie and J.M. Woods J.J.A., March 31, 2017. Digest No. TLD-May12017001