Taxpayer could have advanced grounds of appeal without use of extreme statements

Tax court of Canada | Courts

CONDUCT OF PROCEEDINGS

Taxpayer could have advanced grounds of appeal without use of extreme statements

Trial judge rendered judgment on merits of taxpayer’s appeal, which was appealed. Judge remained seized with issue of costs and with deciding appropriateness of parties’ proposal for dealing with identification of confidential information. Taxpayer made statements in its appellate factum alleging that judge was untruthful in reasons, containing untruths about judge, and alleging impartiality on judge’s part. On judge’s own motion, judge considered whether he should recuse himself from remaining issues. Motion granted; judge recused himself. Reasonable, fair-minded, fully informed Canadian would entertain doubt that judge could remain able to reach impartial decisions, and would be left with apprehension of bias. Taxpayer could have advanced grounds of appeal without use of unqualified extreme statements which attacked judge’s integrity. Taxpayer wrongly accused judge of being untruthful in order to advance argument that judge was doing something different in his reasons than he said he was doing. While taxpayer had right to challenge evidentiary foundation of judge’s conclusions, taxpayer told clear untruths about judge when taxpayer stated that certain issues were not put to taxpayer during trial and were raised for first time in reasons, and that judge reframed case after trial. Taxpayer, in factum, wrote about judge’s “palpable antipathy” towards taxpayer, and referred to his analysis as being “infected by his pejorative and unfair comments”. Reasonable person reading only these phrases would believe that such complaints might give rise to serious doubt about judge’s impartiality. One error in reasons, appropriately identified in factum, was acknowledged.
McKesson Canada Corp. v. R. (Sep. 4, 2014, T.C.C. [General Procedure], Patrick Boyle J., File No. 2008-2949(IT)G, 2008-3471(IT)G) 244 A.C.W.S. (3d) 234.

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