Turner v. Canada

Turner v. Canada Court (s) Database Federal Court of Appeal Decisions Date 2004-02-19 Neutral citation 2004 FCA 72 File numbers A-542-03 Decision Content Date: 20040219 Docket: A-542-03 Citation: 2004 FCA 72 Present: PELLETIER J.A. BETWEEN: LENCY TURNER Appellant and HER MAJESTY THE QUEEN Respondent Written motion decided without appearance by the parties. Order delivered at Ottawa, Ontario, February 19, 2004. REASONS FOR ORDER BY: PELLETIER J.A. Date: 20040219 Docket: A-542-03 Citation: 2004 FCA 72 Present: PELLETIER J.A. BETWEEN: LENCY TURNER Appellant and HER MAJESTY THE QUEEN Respondent REASONS FOR ORDER PELLETIER J.A. [1] The appellant has filed a motion supposedly based on rule 343 of the Federal Court Rules, 1998, which deals with the content of the Appeal Book, but, in fact, the recourse that she invoked is based on rule 351, i.e. leave to present new evidence in support of her appeal. [2] The appellant's motion shows that she has a misconception about the role of an appeal court. An appeal is not a new trial which enables a party to resubmit its evidence in light of the reasons of the court below. As a general rule, an appeal court only addresses evidence that was before the trial court. The exception provided in rule 351 is very narrow, precisely for the reasons stated in Public School Boards Association of Alberta v. Alberta (A.G.), [2000] 1 S.C.R. 44 at paragraph 10, the text of which is reproduced at paragraph 10 of the respondent's submissions. This is why the appeal courts refuse to accept new evidence unless the evidence could not have been filed before the trial court by exercising due diligence, and when, further, the evidence could have a determinative effect on an issue. [3] In this case, neither of these conditions appears to be present. The appellant appears simply to want to contradict the findings of the judge of the Tax Court of Canada by filing evidence that was already available to her but that she did not think appropriate to file during her trial. [4] For these reasons, the appellant's motion is dismissed. The content of the Appeal Book is limited to the proceedings and evidence that were available to the trial judge. "J.D. DENIS PELLETIER" J.A. Certified true translation Kelley A. Harvey, BA, BCL, LLB FEDERAL COURT OF APPEAL SOLICITORS OF RECORD DOCKET: A-542-03 STYLE OF CAUSE: LENCY TURNER Appellant and HER MAJESTY THE QUEEN Respondent WRITTEN MOTION DECIDED WITHOUT APPEARANCE BY THE PARTIES REASONS FOR ORDER AND ORDER BY: PELLETIER J.A. DATE OF REASONS FOR ORDER AND ORDER: February 19, 2004 WRITTEN REPRESENTATIONS BY: Lency Turner Representing herself Martin Gentile For the respondent SOLICITORS OF RECORD: Lency Turner Representing herself Chicoutimi, Quebec Morris Rosenberg Deputy Attorney General of Canada For the respondent Montréal, Quebec Date: 20040219 Docket: A-542-03 OTTAWA, ONTARIO, FEBRUARY 19, 2004 Present: PELLETIER J.A. BETWEEN: LENCY TURNER Appellant and HER MAJESTY THE QUEEN Respondent ORDER The appellant's motion is dismissed. The content of the Appeal Book is limited to the proceedings and evidence that were available to the trial judge. "J.D. DENIS PELLETIER" J.A. Certified true translation Kelley A. Harvey, BA, BCL, LLB