HER MAJESTY THE QUEEN Appellant v. COSTCO WHOLESALE CANADA LTD., 2011 FCA 227

Federal Court of Appeal Cour d'appel fédérale Federal Court of Appeal Cour d'appel fédérale Date: 20110715 Docket: A-493-10 Citation: 2011 FCA 227 Present: NOËL J.A. BETWEEN: HER MAJESTY THE QUEEN Appellant and COSTCO WHOLESALE CANADA LTD. Respondent Dealt with in writing without appearance of parties. Order delivered at Ottawa , Ontario, on July 15, 2011. REASONS FOR ORDER BY: NOËL J.A. Date: 20110715 Docket: A-493-10 Citation: 2011 FCA 227 Present: NOËL J.A. BETWEEN: HER MAJESTY THE QUEEN Appellant and COSTCO WHOLESALE CANADA LTD. Respondent REASONS FOR ORDER NOËL J.A.

[ 1 ] The appellant and the respondent have filed with the Court an agreement respecting the contents of the Appeal Book and the Appeal Book has since been filed. They now both move to vary its contents. [ 2 ] The respondent on the one hand wishes to include the full transcript of the hearing before the Tax Court on October 28, 2010 and the parties’ written submissions presented on the same day.

The appellant on the other hand takes position that only selected parts of the transcript and written submissions should be included, the balance being in its view irrelevant to the issues raised on appeal. [ 3 ] The relevancy or lack thereof of those parts of the transcript which the appellant seeks to exclude is not easily ascertained as the transcript includes extensive exchanges between counsel for both parties and the Tax Court Judge on a number of relevant issues including the credibility of witnesses.

As to the written submissions, there is no bar in principle to their inclusion. [ 4 ] In the circumstances, the prudent thing to do is to allow for the inclusion of the complete transcript and submissions sought to be introduced by the respondent.

The order will also provide that the respondent will have the responsibility of preparing and filing this additional material in a separate Appeal Book forthwith. [ 5 ] Given the events which have led to these motions as described by the respective parties, I see no basis for awarding costs in favour of one party or the other on either motion. [ 6 ] An order is issued accordingly. “Marc Noël” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-493-10 STYLE OF CAUSE: HER MAJESTY THE QUEEN and COSTCO WHOLESALE CANADA LTD.

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR ORDER BY: NOËL J.A. DATED: July 15, 2011

WRITTEN REPRESENTATIONS BY : Marilyn Vardy Sharon Lee Darren Prevost FOR THE APPELLANT William I. Innes David E. Spiro Neil E. Bass FOR THE RESPONDENT SOLICITORS OF RECORD : Myles J. Kirvan Deputy Attorney General of Canada FOR THE APPELLANT Fraser Milner Casgrain LLP Toronto, Ontario FOR THE RESPONDENT