http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/229730/index.do
Dicosmo v. Canada (March 28, 2017 – 2017 FCA 60, Near, Rennie (author), Gleason JJ.A.).
Précis: The taxpayer appealed from a decision of the Tax Court denying him certain employment expenses and not permitting him to raise a defence of statute-barring which he had not pleaded (two other grounds of appeal were abandoned). The Federal Court of Appeal found the he had not demonstrated any reviewable error on the denial of employment expenses. With respect to statute-barring, the law was clear: it had to be pleaded. As a result the appeal was dismissed from the bench with costs.
Decision: On the denied employment expenses the Court found as follows:
[5] In considering an appeal from a decision of the Tax Court, this Court is guided by the principles expressed in Housen v. Nikolaisen 2002 SCC 33 at para. 8. Questions of fact or mixed fact and law are reviewable on the basis of palpable and overriding error; questions of law, or extricable questions of law, are reviewable on the basis of correctness. Here, in requiring the appellant to establish a prima facie case that the Minister’s assumptions were incorrect, the judge identified the correct legal standard. In applying that standard to the facts before her, no reviewable error has been demonstrated. The judge had the benefit of hearing and observing the witnesses, and in our view, the conclusions as to their veracity and reliability had a solid foundation in the record. Equally, the inferences which she drew from the absence of documentation in circumstances where it would be reasonable to expect documentation as in the claim for allowable business investment loss, were also reasonably open to her.
Similarly, the law on statute-barring was clear:
[8] Counsel relied on the decision of the Tax Court of Canada in Yunus v The Queen, 2015 TCC 272, in support of the proposition that the fact that a reassessment is statute-barred can be inferred and be put in issue from the Minister’s Reply pleading.
[9] In our view, the jurisprudence of this Court requires that the issue of whether an assessment is statute-barred must be specifically pleaded. The underlying rationale is to ensure fairness and to permit all evidence relevant to be before the Court.
As a result the appeal was dismissed from the bench with costs.