The Crown took the position that the taxpayer was precluded by Rule 8 from moving to strike a portion of the Crown’s pleadings on the basis that after the Crown had filed its amended Reply following examinations for discovery, the taxpayer filed a motion for the Crown to produce further documents (led to the production of GAAR Committee documents) and conducted further examinations of the CRA auditor. In finding that the fresh start rule did not apply, St-Hilaire J stated (at para. 65):
It is true that almost the entirety of the impugned provisions were in the initial reply or at least in the first amended reply. However, I find that the grounds for the motion … came to the forefront after the GAAR Committee documents were disclosed such that it cannot be said that more than a reasonable amount of time has passed after the Appellant knew of the irregularities in the Further Amended Reply as provided by paragraph 8(a) of the Rules.
Similarly, Rule 8(b) did not apply.
Regarding the use of the term “irregularity” in the Rule, she noted:
A.C.J. Bowman … in Imperial Oil …at para 20 … stated that allegations that the appeals are frivolous, vexatious and an abuse of process is hardly an attack on an irregularity.