The Tax Court found that a $136.6 million receipt of the taxpayer was not income to it. The Crown did not challenge this finding in connection with the appeal by the taxpayer of other Tax Court findings to the Federal Court of Appeal. However, the Federal Court of Appeal, while its decision was under reserve and on its own initiative, questioned the above determination, and asked for and received submissions on its correctness.
Before going on to find that it was appropriate for the Court to find that such receipt was income to the taxpayer, Monaghan JA stated (at paras. 333-335):
Appellate courts have the discretion to consider new issues on appeal, where failing to do so would risk an injustice: R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689 at paras. 41-42 [Mian]. Whether the failure to raise a new issue would do so depends on the circumstances but, where there is good reason to believe the result would have been different had the error not been made, the appellate court’s intervention is justified: Mian at para. 45; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579 at para. 50.
Mian seeks to strike a balance between the adversarial process and the appellate court’s duty to ensure that justice is done: paras. 37-41, 46; see also R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801 at para. 93. However, an appellate court must be satisfied that there is a sufficient basis in the record on which to resolve the issue: Mian at para. 51; Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712 at paras. 36-37.
In my view, the issue is not new … . However, even if it were a new issue, I am satisfied there is a sufficient basis in the record to resolve the issue and we have a duty to do so to ensure justice is done.