Acanac Inc. v. R. – FCA: Federal Court of Appeal denies appeal on issues of fact and refusal to accept expert evidence

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Acanac Inc. v. Canada (National Revenue) (October 30, 2014 – 2014 FCA 248) was an appeal from a decision of the Tax Court which dismissed EI and CPP appeals:

[1] Acanac Inc. (the appellant) appeals from the May 16, 2013 decision of the Tax Court of Canada, in which Justice Campbell Miller (the judge) dismissed its appeals made under section 103 of the Employment Insurance Act, S.C. 1996, c. 23 and section 28 of the Canada Pension Plan, R.S.C., 1985, c. C-8 (2013 TCC 163).

[2] The appellant seeks to overturn the decision of the judge on the basis that he made a series of fundamental errors in his factual determinations and in his weighing of the evidence before him. The appellant further alleges that the judge made procedural errors related to the conduct and management of the trial.

The Court of Appeal rejected the appeal of the Tax Court Judge’s factual findings:

[5] The judge’s assessment of evidence and the weight accorded to such evidence in applying the legal test are to be given great deference. This Court may only interfere if the judge committed palpable and overriding errors (see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 10). In my view, there is no obvious error, or error going to the very core of the outcome of the case, in the judge’s assessment and weighing of the evidence with respect to any of the matters raised by the appellant. The conclusions reached on these matters were amply supported by the evidence before the judge. There is no reason to intervene on this basis.

It also rejected the argument that the Tax Court Judge should have admitted an entire report, not just a portion thereof:

[7] … The judge considered the Spark chat log and the submissions by counsel, and decided that only the first 10 pages were required for the limited purpose for which the evidence was being tendered. There is no reason to interfere with that exercise of discretion as to either the extent of the Spark chat log accepted or the length of the adjournment granted. It is worth noting that the evidence was adduced by the respondent for the limited purpose of showing an element of control and supervision over the workers by the appellants.

Finally the Court of Appeal rejected the argument that the Tax Court Judge should have accepted expert evidence:

[9] It is evident that the judge was alive to the appellant’s argument that knowledge-based work, such as the internet-based support service at issue in this matter, could raise novel considerations and was open to the appellant making submissions in this regard. In my view, the judge was not attempting to limit the appellant’s argument with respect to the issue of novelty. Rather, the exclusion of the appellant’s expert was premised on the conclusion reached by the judge, after he considered counsel’s submissions, that expert testimony was neither necessary nor helpful given that the workers involved could provide similar evidence (see pages 198-200 of the Appeal Book). Put another way, he considered that he could determine the issue with only the workers’ evidence before him. Further, the judge waited until he had heard the workers’ evidence before making his final decision not to hear the expert’s testimony. The judge also had real concerns about the admissibility of the expert report.

[10] I see no reason to disagree with the judge’s evaluation. The judge was aware of the correct principles governing the admission of expert evidence and applied those principles in an acceptable way to the circumstances before him. We see no reason to intervene on this basis.

As a result the appeal was dismissed with costs.