Canada v. B.W. Strassburger Ltd.

Canada v. B.W. Strassburger Ltd.

The Tax Court Judge erred in drawing an inference of misconduct from a late supplementary affidavit filed two days before the hearing without giving the Crown a reasonable opportunity to respond; the evidence did not support a punitive costs award. The appellate court therefore quashed the punitive $6,500 award, substituted a party/party costs award of $1,500 inclusive, and dismissed the taxpayer's cross-appeal seeking judgment on the underlying tax appeal.

Citation
2002 FCA 332
Parties
Appellant (respondent): Her Majesty the Queen; Respondent (appellant): B.W. Strassburger Limited
Court
Federal Court of Appeal
Jurisdiction
Canada
Judgment Date
10 September 2002
Procedural Posture
Tax Appeal (appeal From Tax Court) / Appeal From Tax Court Judgment on Motion for Judgment and Costs; Hearing and Reasons Delivered From the Bench
Outcome
Appeal allowed in part: punitive costs quashed and substituted with party/party costs; cross-appeal dismissed.
Legal Topics
Service of Documents, Extension of Time, Costs Awards, Procedural Fairness, Judicial Discretion
Source Language
English
Tax Law Civil Procedure Costs Service of Documents Extension of Time Costs Awards Procedural Fairness Judicial Discretion

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Parties

Her Majesty the Queen

Appellant (respondent)

B.W. Strassburger Limited

Respondent (appellant)

Procedural Posture

Tax Appeal (appeal From Tax Court) / Appeal From Tax Court Judgment on Motion for Judgment and Costs; Hearing and Reasons Delivered From the Bench

Legal Issues

  1. 1 Whether the Crown's Reply was served out of time under the Tax Court Rules
  2. 2 Whether the Tax Court Judge erred in awarding punitive costs based on a late supplementary affidavit without affording the Crown a fair opportunity to respond
  3. 3 Whether the taxpayer's cross-appeal seeking judgment should be allowed

Ratio Decidendi

The Tax Court Judge erred in drawing an inference of misconduct from a late supplementary affidavit filed two days before the hearing without giving the Crown a reasonable opportunity to respond; the evidence did not support a punitive costs award. The appellate court therefore quashed the punitive $6,500 award, substituted a party/party costs award of $1,500 inclusive, and dismissed the taxpayer's cross-appeal seeking judgment on the underlying tax appeal.

Court Disposition

Appeal allowed in part: punitive costs quashed and substituted with party/party costs; cross-appeal dismissed.

Orders

  • Paragraph 5 of the Tax Court order dated June 8, 2001 (award of $6,500 punitive costs) quashed.
  • Taxpayer awarded party/party costs of the motion of $1,500 inclusive of disbursements payable in any event of the cause.