Heron v. The Queen 2017 TCC 71 (D’Auray) TCC GPR Rule 53 allows a taxpayer or the Crown to eliminate pleadings or paragraphs from them. The tactical advantage is that the discovery is restricted to the pleadings; an eliminated fact can eliminate exposure to cross-examination and damning evidence.
“[12] When a party states that the allegation is not relevant, the “irrelevancy must be quite clear and, so to speak, apparent at the first glance. It is not enough that on considerable argument it may appear that they do not afford a defence.”3″
“[18] I do not agree with the appellant. In tax appeals, the role of the assumptions of fact in a Reply is to inform the taxpayer of the factual basis upon which he or she has been assessed by the Minister. Justice Bowman in Holm v Canada,5 stated that the assumptions “are supposed to be a full and honest disclosure of the facts upon which the Minister relied in making the assessment.”6 Justice Bowman also stated in Mungovan v The Queen, in tax cases:7
Assumptions are not quite like pleadings in an ordinary lawsuit. They are more in the nature of particulars of the facts on which the Minister acted in assessing. It is essential that they be complete and truthful.8″
But there is a distinction between proved criminal charges and alleged crimes. Relying on Simard v R., Justice D’Auray adds:
“‘To allege in a pleading that a person is charged with a criminal offence, but the charge has not been proven serves no legitimate purpose. If, prior to the hearing of this appeal, the individuals are found guilty of the charges, then the respondent may consider amending her reply accordingly.'” [Her emphasis.]
(Even so, the allegations could be pled if they were simply part of the CRA’s assumptions when it made the reassessments: para. 23.)
Heron v. The Queen 2017 TCC 71 (D’Auray)