After finding that a CRA affidavit to which were attached 90 pages of documents could not be admitted because (contrary to Rule 89) the affidavit was tabled only after the evidence had been put in at trial and without advance notice to the taxpayer, D’Arcy J went on to find that the documents could not be admitted under ETA s. 335(5) (similar to ITA s. 244(9)), stating (at paras. 44-47):
[44] The Respondent does not appear to appreciate that subsection 335(5) does not address the truthfulness of the contents of the document. This subsection states that the affidavit is evidence of the nature and contents of the CRA document. In my view, the words “evidence of the nature and contents” refer to the authenticity of the CRA document and the fact that the affidavit evidences what is stated in the CRA document.
[45] For example, the affidavit of Mr. Shimizu is evidence that the attached documents are copies of authentic CRA documents and the documents evidence what is stated in the documents. The documents attached to Mr. Shimzu’s affidavit evidence how the CRA recorded the Appellant’s refund claims; they are not evidence of the truth (“correctness”) of what the documents say.
[46] The Respondent argued that subsection 335(5) allows a document to be presented without cross-examination and that it allows the Minister to file documents without calling a witness.
[47] There is nothing in the wording of subsection 335(5) to support such a position. The subsection simply states that the affidavit is evidence of the nature and contents of the attached CRA document. It does not state that the document is admissible in a hearing or that it can be presented without cross-examination.