BETWEEN:
and
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on July 20, 2006.
REASONS FOR ORDER BY: LÉTOURNEAU J.A.
Docket: A-195-06
Citation: 2006 FCA 262
Present: LÉTOURNEAU J.A.
BETWEEN:
ANDRZEJ STANISLAW STAWICKI
Appellant
and
MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR ORDER
[1] It is usually the rule that self-represented litigants and the opposing party are not able to agree on the content of the appeal book. This case is no exception. Once again, this Court is required to determine its content without, of course, having the full benefit and knowledge of the evidence that was before the trial court.
[2] There are a number of principles applicable to the making-up of the appeal book. In her Motion Record, counsel for the respondent has succinctly and adequately summarized them as follows:
Under rule 343(2), the parties shall include in an appeal book only such documents, exhibits and transcripts as are required to dispose of the issues on appeal.
Rule 343(2) must be understood in the context of the overriding principle that an appellate court generally will not consider evidence unless that evidence was before the court from which the appeal is taken: Montana Band v. Canada, 2001 FCA 176 at par. 8.
Save for some very exceptional circumstances, the appeal book should contain only the material which was before the trial judge: the purpose of an appeal is to determine if the trial judge made the correct decision on the basis of the material before him. Parties on appeal cannot continue to add to the record to try to support a case they did not properly submit to the court below: Paquette v. Canada, 2002 FCA 441 at par. 4.
In the respondent's view, it is unclear from the appellant's Motion Record whether or not part or all of the Disputed Evidence was presented to the trial judge and ruled inadmissible. As set out above, the function of this Court is to determine if the decision at trial was correct based on the material before the trial judge. As such, the appeal book should not contain any material that was excluded at trial.
New evidence may be adduced on appeal only pursuant to an order under rule 351. Rule 351 provides that, in special circumstances, the Court may grant leave to a party to present evidence on a question of fact.
Generally, leave to present evidence on appeal is granted only if the evidence could not, with reasonable diligence, have been presented in the court below, and if the evidence is credible and practically conclusive of an issue on the appeal: Frank Brunckhorst Co. v. Gainers Inc., [1993] F.C.J. No. 874 (C.A.).
[3] I see and have been given no reason to depart from these principles. Therefore, the appellant's motion will be granted in part and the content of the appeal book will be limited to the material described in the issuing Order.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-195-06
STYLE OF CAUSE: ANDRZEJ STANISLAW STAWICKI v.
THE MINISTER OF NATIONAL REVENUE
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: LÉTOURNEAU J.A.
| FOR THE APPELLANT
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| FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Deputy Attorney General of Canada
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FOR THE RESPONDENT
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