McKesson v. R. – TCC: Justice Boyle recuses himself – concludes McKesson and its counsel accused him of lying.

Bill Innes on Current Tax Cases

http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/73273/index.do New Window

McKesson Canada Corporation v. The Queen (September 4, 2014 – 2014 TCC 266) is a decision in which Justice Boyle has recused himself from all further McKesson-related matters, including the pending costs determination. His recusal is based, in part, on a determination that McKesson and its counsel and co-counsel publicly accused him of lying in the factum they filed with the Federal Court of Appeal on their pending transfer pricing appeal:

[138] However, I am satisfied that a reasonable fair-minded Canadian, informed and aware of all the issues addressed above, would entertain doubt that I could remain able to reach impartial decisions. I believe that such a reasonable fair-minded and informed person, viewing this realistically and practically would, after appropriate reflection, be left with a reasoned suspicion or apprehension of bias, actual or perceived. Canadians should rightly expect their trial judges to have broad shoulders and thick skins when a losing party appeals their decision, but I do not believe Canadians think that should extend to accusations of dishonesty by the judge, nor to untruths about the judge. Trial judges should not have to defend their honour and integrity from such inappropriate attacks. English is a very rich language; the Appellant and its counsel could have forcefully advanced their chosen grounds for appeal without the use of unqualified extreme statements which attack the personal or professional integrity of the trial judge.

As Justice Boyle is a former colleague and good friend I do not think I can blog this decision. I am attempting to have an expert guest blogger prepare a commentary and will publish it as soon as I can.