Dilalla v. R. – TCC: Taxpayer not entitled to fresh discovery with new representative of the Crown

Dilalla v. R. – TCC:  Taxpayer not entitled to fresh discovery with new representative of the Crown


Dilalla v. The Queen (*August 29, 2018 – 2018 TCC 178, Bocock J.).

Précis:   Mr. Dilalla worked as a carpenter and received amounts in 2010, 2011 and 2012 from a contracting corporation of which he was sole director and shareholder.  He did not report them as income arguing that “his activities were performed for the “sole purpose and intent of exercising his labour in providing a livelihood” for himself and his family. In short, he believes the amounts received were neither a source of taxable income nor dividends. [para. [1]].”

He conducted a discovery of the officer appointed by the Crown and was dissatisfied with the answers.  He moved to examine another officer of the Crown.  Bocock J. dimissed his application with costs holding it was not supported by the facts, the jurisprudence or the Rules.

Decision:   Mr. Dilalla’s motion can be summarized as follows:

[4]  The parties conducted examinations for discovery in writing. The Respondent chose Ms. Mona Karol as her nominee to be examined for discovery. Ms. Karol is an appeals officer with the Canada Revenue Agency (the “CRA”) who was assigned to Mr. Dilalla’s objection and confirmed the reassessments at issue. Mr. Dilalla served fifty-five written questions dated October 7, 2016, and the Respondent provided answers by way of affidavit, sworn by Ms. Karol on November 3, 2016. Mr. Dilalla served thirty-two follow-up questions dated November 22, 2016, and the Respondent’s provided answers by way of affidavit, also sworn by Ms. Karol on December 15, 2016. Many of the questions asked were questions intended to explore the conduct of the auditor and her opinion on the law and on the Mr. Dilalla’s arguments and interpretation concerning a certain authority: Stewart v Canada, 2012 SCC 46.

[5]  Mr. Dilalla submits the received answers were uninformed or unsatisfactory because Ms. Karol:

(i) erred in her interpretation of questions of law or mixed fact and law;

(ii) revealed an unwillingness to review the CRA’s files;

iii) was not the auditor, but instead an appeal’s officer;

(iv) is not the CRA witness to be called by Mr. Dilalla at the trial; and

(v) revealed a misunderstanding of the questions.

[6]  To correct the impugned answers, Mr. Dilalla seeks an order permitting him to examine the auditor, or the auditor’s team leader, or alternatively for the Respondent to provide “a list of knowledgeable people for the Appellant to choose from”. Specifically, he would prefer to re-examine the auditor, Ms. Sharon Lancaster.

Bocock rejected Mr. Dilalla’s motion:

[12]  After a decision was rendered by the Federal Court of Appeal concerning Mr. Dilalla’s appeal of Justice Miller’s Order regarding the additional documentary disclosure, an application of readiness for hearing was filed jointly on agreement of both parties. What then could cause the Court to re-open examinations at such stage?

[13]  When the examinations are over, the Court will only permit re-examination in one of two circumstances. First, in an exceptional case where information was not available at the time of discovery, and with diligence, could not have been put to the deponent: Rule 93(1) and SmithKline, supra, at paragraph 36. The Court will also permit re-examination when new information arises out of an undertaking of a correction, or clarification of an answer that was provided during discovery: Rule 93(1) and SmithKline, supra, at paragraphs 36 and 37.

[14]  No evidence was placed before the Court of new information, not otherwise available at the time of the initial discovery. Similarly, no additional disclosure has prompted the motion. The absence of these first two circumstances is buttressed by Mr. Dilalla’s previous decision to proceed to hearing and, without explanation, change his mind. Further, no evidence exists that new information arose after the joint application to proceed was signed and filed.

[21]  Even as a motion judge, reviewing only the divergent views of the parties gleaned from the motion submissions and joint application, this appeal appears centred on limited documentary evidence. A handful of critical documents and records, the Appellant’s own financial and organizational structures and the interpretation of legal authorities related to the apparent facts and structures will be central to the outcome of the hearing.

[22]  The Respondent’s nominee has not shown intransigence or unfamiliarity with the reassessment. She was critically involved in it. There are no new circumstances or revelations indicating a re-examination of another nominee would assist in this matter.

[23]  In summary, Mr. Dilalla now needs to take his appeal to a trial judge. The motion is denied. Costs are awarded to the Respondent in accordance with the Tariff, subject to either party’s right to make submissions within 30 days.

In essence Mr. Dilalla seems to have either misunderstood the Rules or wanted to delay the proceeding by one more discovery, or both.  In any event Justice Bocock rejected his arguments and dismissed the motion with costs.