Background
Mario Laquerre filed two appeals in the Tax Court of Canada in March 2011, one concerning his 1999–2002 taxation years and another concerning 2005. In 2014, his bankruptcy trustee reached a settlement and filed notices of discontinuance for both appeals. Under section 16.2 of the Tax Court of Canada Act, those discontinuances operated as dismissals of the appeals (the “2014 Judgments”).
In May and June 2022, Laquerre moved under paragraph 172(2)(a) of the Tax Court of Canada Rules (General Procedure) to set aside or vary the 2014 Judgments and reopen all five taxation years. Justice Boyle dismissed those applications on August 9, 2022 (2022 TCC 90) (the “2022 Order”). Laquerre appealed to the Federal Court of Appeal on August 19, 2022, but filed a notice of discontinuance of that appeal on March 1, 2024.
On March 23, 2026, Laquerre brought a fresh motion under paragraph 172(2)(a), this time targeting the 2022 Order itself and seeking to reopen only the 2005 appeal. He relied on an affidavit sworn in 2007 by Pierre Baril, a Caisse populaire Desjardins manager, which Laquerre said he obtained from the Federal Court registry on October 21, 2024. On June 29, 2026, he brought a second motion for leave to examine two Canada Revenue Agency officers, Annie Morin and André Ferland, under Rules 93 or 99, asking that this motion be decided first because the discovery was said to be essential to his Rule 172 motion.
The Court’s Holding
Associate Judge Miller first addressed sequencing. Because the right to conduct examinations for discovery depends on the existence of a valid appeal or reference, and because a discontinued appeal no longer exists, the Rule 172 motion had to be decided first. On jurisdiction, the Court held that it could entertain the motion: Laquerre’s discontinuance of his Federal Court of Appeal proceeding was a unilateral act that ended that proceeding without any decision on the merits, and it confirmed the final and executory character of the 2022 Order. The Court distinguished section 16.2 of the Tax Court of Canada Act, which deems a discontinued Tax Court appeal to be dismissed, from Rule 165 of the Federal Courts Rules, which creates no such legal fiction.
The Court rejected the Crown’s res judicata defence on the facts of this case. Cause-of-action estoppel did not apply because the cause of action was distinct: the 2022 applications sought to set aside the 2014 Judgments, while the present motion seeks to set aside the 2022 Order. Issue estoppel did not apply because the question now raised—whether the 2007 affidavit constitutes facts discovered after the 2022 Order—was not before Justice Boyle.
On the merits, the Court applied the three-part test from Supavititpatana (2020 TCC 46): the moving party must show (i) new facts arising or discovered after the order; (ii) facts that could not reasonably have been discovered earlier; and (iii) facts that would probably have produced a different order. Laquerre failed all three. The 2007 affidavit was filed in Federal Court in 2007 by his own counsel in a proceeding in which he was a named party; it was therefore under his control through his lawyers and could not be characterized as “discovered” after the 2022 Order. The Court found his supplementary affidavit evidence—that he never knew of the document because it was held by third parties—unconvincing, and noted that a reasonable person aware of the strict requirements (as Laquerre was, given a 2018 Federal Court decision on a similar motion) would have consulted his former counsel. He also failed to show the affidavit would probably have changed the outcome: there was no evidence of fraud or non-disclosure by the CRA in connection with the 2014 settlement, and no evidence from the bankruptcy trustee who concluded that settlement that the trustee lacked the affidavit or that its contents would have affected the settlement.
The discovery motion fell with the Rule 172 motion. Because no valid appeal existed, neither the Tax Court of Canada Act nor the Rules supported ordering examinations for discovery. In the alternative, the Court would have dismissed that motion as frivolous, since the sought-after evidence could not cure the failure to satisfy the first two criteria of the Rule 172 test. Although the Court would otherwise have awarded costs to the Crown, it awarded none under Rule 147 because the Crown’s limited participation—including a late response to a Court request and silence on the discovery motion and on the supplementary affidavit request—unnecessarily prolonged the proceedings and the issuance of the judgment.
Key Takeaways
- A party seeking to set aside an order under paragraph 172(2)(a) on the basis of “discovered” facts must prove the document was not under its control earlier; here, an affidavit filed by the applicant’s own counsel in 2007 Federal Court proceedings did not qualify.
- On these facts, res judicata did not bar a second Rule 172 motion because the target order and the underlying question differed from those in the 2022 applications; the Court did not lay down a universal rule.
- In this case, the right to examinations for discovery presupposed an existing appeal or reference; with no valid appeal before the Court, the discovery motion was dismissed, and in the alternative as frivolous.
- Even a successful respondent may be denied costs where its limited and untimely participation unnecessarily prolongs the proceedings.
Why It Matters
The decision illustrates how the Tax Court applies the strict Supavititpatana criteria to successive attempts to reopen appeals long after discontinuance, and how the legal fiction in section 16.2 of the Tax Court of Canada Act shapes both jurisdiction and sequencing. It also shows the Court’s willingness to deny costs to a prevailing party whose engagement with the process falls short.