Date: 20030307
Docket: A-558-02
Neutral citation: 2003 FCA 124
Present: The Honourable Justice Sharlow
BETWEEN:
JOHN DAVID HERRING
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Dealt with in writing without appearance of parties
Order delivered at Ottawa, Ontario, March 7, 2003
REASONS FOR ORDER BY: SHARLOW J.A.
Date: 20030307
Docket: A-558-02
Neutral citation: 2003 FCA 124
Present: The Honourable Justice Sharlow
BETWEEN:
JOHN DAVID HERRING
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
[1] The appellant has appealed a judgment of the Tax Court: Herring v. Canada, 2002 D.T.C. 2153 (T.C.C.). It appears that a critical issue in the appeal was whether a certain business was carried on by a corporation, or by the appellant in partnership. The appellant seeks to present, as evidence on appeal, a document purporting to be a certificate dated December 16, 2002, signed by Harriet Smith Windsor, which reads as follows:
| I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY CERTIFY THAT A THOROUGH SEARCH OF THE CORPORATION RECORDS OF THIS DEPARTMENT INDICATE THE "COMBAT INDUSTRIAL BATTERIES & CHARGERS INC.", IS NOT THE TITLE OF A DELAWARE CORPORATION OR FOREIGN CORPORATION. AND I DO HEREBY CERTIFY THAT THE RECORDS OF THIS OFFICE FAIL TO SHOW THAT A CORPORATION OF THE ABOVE TITLE HAS EVER FILED A CERTIFICATE OF INCORPORATION OR QUALIFIED AS A FOREIGN CORPORATION IN THIS DEPARTMENT. |
[2] Counsel for the appellant says, and I accept, that it was not until after the conclusion of the Tax Court trial that he learned that it was possible to obtain a certificate from the State of Delaware to the effect that a corporation with a certain name had not been incorporated there. He also says that the Crown's pleadings do not allege that the corporation carrying on the business in question was a Delaware corporation named Combat Industrial Batteries & Chargers Inc.
[3] Counsel for the respondent does not say that its pleadings identified the corporation. However, she points out there was documentary evidence in the Tax Court that the corporation carrying on the business in question was a Delaware corporation named Combat Industrial Batteries & Chargers Inc. I note that there were also other documents stating different corporate names. In the normal course, all of those documents would have been disclosed to the appellant in pre-trial discovery proceedings.
[4] I conclude, based on the material before me, that counsel for the appellant should have been aware prior to the trial that there would be an issue as to the existence of a Delaware corporation named Combat Industrial Batteries & Chargers Inc. which carried on the business in question. It seems to me that with due diligence, he could have made the enquiries that would have led him to obtain the certificate before trial.
[5] For these reasons, the motion to present evidence on appeal will be dismissed.
"K. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-558-02
STYLE OF CAUSE: JOHN DAVID HERRING and HER MAJESTY THE QUEEN
DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER : SHARLOW J.A.
DATED: MARCH 7, 2003
WRITTEN REPRESENTATIONS BY:
John David Buote FOR THE APPELLANT
Eleanor H. Thorn FOR THE RESPONDENT
SOLICITORS OF RECORD:
John David Buote
Barrister and Solicitor
Brampton, Ontario FOR THE APPELLANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario