Date: 19990715
Docket: 98-2959-IT-G
BETWEEN:
STEFFEN E. WALTZ,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Order
Lamarre Proulx, J.T.C.C.
[1] This is a motion made for the purpose of obtaining
permission that an important witness for the Appellant, Mr. Eric
Waltz, the Appellant's father, testify not in the immediate
presence of counsel or of the presiding judge in Montreal, but in
Germany by means of a video-conference. Everyone involved in the
court process would attend the examination in Montreal. Mr. Eric
Waltz would attend the examination in Germany.
[2] An affidavit of the Appellant was filed with the Court
before the hearing of this motion. It stated that his father,
Mr. Eric Waltz, resided in Germany and was too old and
too ill to travel to Canada. It also stated that Mr. Waltz
spoke German and a little English. The affidavit did not state
the age of the Appellant's father but counsel for the
Appellant told the Court that he was under the impression that he
was at least 80 years old.
[3] The Appellant undertook in his affidavit that visual and
oral contact between the parties would be kept at all times
during the examination. This was confirmed by counsel for the
Appellant, who also confirmed that the setting of the
video-conference would be entirely at the Appellant's
responsibility and expense. It was also stated that the
examination could take place sometime in August 1999, before the
hearing set on September 9, 1999, or on the day of the hearing.
The examination would be videotaped and the videotape would be
filed in evidence, pursuant to section 109 of Tax Court
of Canada Rules (General Procedure)
(the "Rules").
[4] Counsel for the Respondent opposed the motion on the basis
that it would be more difficult to ascertain the credibility of
the witness. In addition, he stated that the taking of evidence
by means of a video-conference is not provided for in the
Rules. What is foreseen in these circumstances is a
rogatory commission, as specified in subsection 112(2) of
the Rules.
[5] Counsel for the Appellant submitted that sections 7
and 9 of the Rules allow the Court to issue orders as to
rules of procedure that are not specifically provided for in the
Rules, where the interests of justice do dictate.
[6] Section 9 of the Rules read as follows:
9. The Court may, only where and as necessary in the interests
of justice, dispense with compliance with any rule at any
time.
[7] The Federal Court of Appeal in The Queen v.
Danny Moss, 99 DTC 5204, found that there was
authority under section 9 of the Rules to vary the
procedural requirements in the interests of justice. A procedural
matter prescribed by a rule may be waived pursuant to those
rules. I would also refer to one of my decisions in P.
Feuiltaut v. Canada, [1993] 1 C.T.C. 2385.
[8] I agree with counsel for the Respondent that the best
method of ascertaining the credibility of a witness by a
presiding judge is to have this witness appearing in Court at the
time of the hearing. However, in the present case, it is alleged
that the witness is too old and too ill to make the required long
trip. There was no evidence to the contrary and I find no reason
not to believe the Appellant's affirmation. It may very well
be that the trip is too tiring for a man of an advanced age. His
testimony is very important for the Appellant and it is surely
not lightly that the Appellant makes that request, as he would
prefer to have him in Court in Montreal. Another reason to
believe in the genuineness of the request is that it appears to
me that the cost of bringing the witness to Canada would be lower
than organizing the taking of his testimony by video-conference.
The issue of the rogatory commission was not really debated. I
suppose that its costs in view of the financial means of the
Appellant and of the amount of income tax at stake, did not make
it a reasonable alternative in the mind of either party. I
therefore find that it is in the interests of justice to allow
the taking of Mr. Eric Waltz's testimony in the manner
sought.
[9] Counsel for the Appellant has suggested two possibilities:
first, that the testimony be taken out of Court before the date
of the hearing, that is September 9, 1999 or, at the time of
the hearing. It may appear at first sight that it would be better
if the testimony was given in front of the presiding judge on
September 9, 1999. However, this method of taking testimony
is new and requires technical knowledge and reliance on
transmission that may be faulty especially in the first
experiences. The Court therefore finds it advisable that the said
examination be held out of the presence of the presiding judge in
the month of August, and the videotape be filed with the
Court.
[10] Respecting the services of a translator from English to
German and vice-versa, subsection 102(4) of the
Rules will apply:
102(4) Where the person being examined understands neither
English nor French, or is deaf or mute, the examining party shall
provide and pay the fees and disbursements of a competent and
independent interpreter approved by the Registrar who shall take
an oath or make an affirmation to interpret accurately the
administration of the oath or affirmation, the questions to be
put to the person being examined and the person's
answers.
[11] There will be no order as to costs.
Signed at Ottawa, Canada, this 15th day of July, 1999.
"Louise Lamarre Proulx"
J.T.C.C.
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