Jackson v Jackson, 2021 SKCA 8

Court of Appeal for Saskatchewan Docket: CACV3450 Citation: Jackson v Jackson, 2021 SKCA 8Date: 2021-01-19 Between:Michael Gordon JacksonApplicant/Appellant (Petitioner)AndMariecar Latina JacksonRespondent/Respondent (Respondent)Before: Richards C.J.S., Ottenbreit and Ryan-Froslie JJ.A.Disposition: Application with respect to the production of transcripts granted Application to introduce fresh evidence dismissedWritten reasons by: The Honourable Chief Justice RichardsIn concurrence: The Honourable Mr.

Justice Ottenbreit The Honourable Madam Justice Ryan-FroslieApplication heard: January 12, 2021Counsel: Michael Jackson appearing on his own behalf Debra Haid for the Respondent Richards C.J.S. [1] Michael Jackson is appealing a family law decision rendered by the Court of Queen’s Bench.

He has brought two applicationsthat require resolution before the substance of his appeal is argued. [2] The first application concerns transcripts of proceedings that took place in this Court on June 14, 2018 (a show cause hearingfor file CACV3032), October 11, 2018 (the appeal hearing for file CACV3032), December 11 and 18, 2019 (a motion to perfect for fileCACV3450), and April 6, 2020 (a motion for enforcement on file CACV3450). [3] Mr. Jackson explains that he requires these transcripts in order to properly argue his appeal.

His position, as I understand it, isthat the judges of this Court before whom he has appeared have been biased. He suggests that what they said and decided somehowimproperly influenced what the trial judge did in the decision presently under appeal. Having reviewed the relevant parts of the trialtranscript – Mr. Jackson’s opening statement, his testimony and his closing argument – it is not clear how the transcripts in question willbe relevant to the resolution of this appeal. However, an allegation of bias is, in and of itself, a very serious matter. In the interests ofhelping Mr.

Jackson more clearly understand what transpired in the Court of Appeal proceedings he has flagged, and to ensure that he isnot handicapped in any way in advancing his appeal, it is in the interests of justice that he be able to obtain transcripts of thoseproceedings. [4] I would therefore direct the Registrar to forward the audio recordings for the proceedings in issue to Transcript Services. Mr.Jackson will be responsible for contacting Transcript Services and arranging for production of the transcripts with payment, by him, on abasis acceptable to Transcript Services. On receipt of the transcripts, Mr.

Jackson is directed to forthwith provide one copy to counsel forMs. Jackson and one copy to the Court, through the office of the Registrar. The Registrar will, at that point, take the steps necessary to seta date for argument of the appeal proper. [5] Mr.

Jackson’s second application asks the Court to accept, as fresh evidence, a Canada Revenue Agency notice of assessmentwith respect to his 2017 income tax, a Canada Revenue Agency notice of assessment with respect to his 2018 income tax, and his 2019income tax return. [6] The admissibility of this evidence is governed by the test spelled out by the Supreme Court of Canada in R v Palmer, (SCC), [1980] 1 SCR 759 at 775 [Palmer]:

(1) The evidence should generally not be admit​ted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen [ (SCC), [1964]SCR 484].

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evi​dence adduced at trial, be expected to have affectedthe result. [7] The 2017 notice of assessment fails the first branch of the Palmer test. The trial in issue here took place in late 2018 and 2019.As a result, Mr. Jackson should have been in a position to tender evidence concerning his 2017 taxable income at the trial. He did not doso, at least in part, because he did not file a tax return for that year until 2019. This delay can be laid wholly at Mr.

Jackson’s feet with theresult that the information contained in the 2017 notice of assessment must be seen as something that, with due diligence, he could haveput into evidence at the time of the trial. [8] The 2018 notice of assessment also fails the first branch of the Palmer test. It could not have been available when the main

part of the trial was conducted in December of 2018. However, in May of 2019, when the trial judge still had his decision under reserve, the trial was reopened to allow Ms. Jackson to file evidence about a change in her immigration status. At that time, Mr. Jackson also applied to introduce further evidence and was given permission to lead evidence about recent developments concerning his daughter’s physical and emotional health, and visits to the doctor. Mr. Jackson did not seek to introduce evidence about his 2018 income at that time although it could have been available. As well, it appears that Mr.

Jackson did not file his 2018 income tax return until December of 2019. That delay would seem to be wholly his fault. It follows that the information found in the 2018 notice of assessment is something that, with due diligence, Mr. Jackson could have put before the trial judge. [ 9 ] The 2019 tax return satisfies the first three branches of the Palmer test. But, it cannot satisfy the fourth branch. The subject of this appeal is a Queen’s Bench decision rendered on June 24, 2019. Evidence about income earned by Mr.

Jackson after that date, as reflected in his 2019 income tax return, cannot assist in answering the question of whether that decision involves a reviewable error. As counsel for Ms. Jackson points out, Mr. Jackson’s 2019 income could be relevant on a variation application. It might also be relevant to a recalculation of the sort provided for in paragraph 13 of the order of the Court of Queen’s Bench. However, it is not relevant to the resolution of this appeal and could not have had any impact on the decision of the trial judge. [ 10 ] In

summary, Mr. Jackson’s application with respect to the production of transcripts is granted, in the terms described above. His application to introduce fresh evidence is dismissed. There will be no order with respect to costs in relation to either of these matters. “Richards C.J.S.” Richards C.J.S. I concur. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A.