Docket: 2008-101(IT)G
BETWEEN:
WINSTON BLACKMORE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeals
heard on January 23, 24, 25, 26, 30, 31,
February 1, 2, 6, 7, 8, 9, 10, 27, 28, 29,
March 1 and 2, 2012
at Vancouver, British Columbia
Before: The Honourable
Justice Diane Campbell
Appearances:
|
Counsel for the Appellant:
|
David
R. Davies
Natasha S. Reid
|
|
Counsel for the Respondent:
|
Lynn M. Burch
David Everett
Selena Sit
|
____________________________________________________________________
ORDER
WHEREAS at the conclusion of the
presentation of the evidence by both parties, the Respondent, as part of its
case, indicated that it intended to read into the evidence certain questions
and answers from the examination for discovery of Winston Blackmore;
AND WHEREAS the Appellant brought
an application pursuant to subsection 100(3) of the Tax Court of Canada
Rules (General Procedure) to introduce into evidence other portions of the
examination for discovery in respect to three of the Respondent’s read-ins,
referred to more specifically in the Appendix attached to these Reasons;
AND WHEREAS submissions were
heard from each of the parties;
IN ACCORDANCE with my attached
Reasons, I order that the Appellant’s proposed additional read-ins, respecting
numbers 2 and 3 as referenced in the attached Appendix, will be allowed into
evidence.
Signed at Ottawa,
Canada, this 2nd day of April
2012.
“Diane Campbell”
Citation: 2012 TCC 108
Date: 20120402
Docket: 2008-101(IT)G
BETWEEN:
WINSTON BLACKMORE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
RULING ON APPELLANT’S MOTION
RESPECTING ADDITIONAL READ-INS
Campbell J.
[1]
At the close of the
evidence in the above-noted appeals, and at the commencement of the
Respondent’s proposed read-ins of portions of Mr. Blackmore’s examination
for discovery evidence, the Appellant’s Counsel made a request for the
introduction into the record of additional read-ins from the examination, pursuant
to subsection 100(3) of the Tax Court of Canada Rules (General Procedure)
(the “Rules”).
[2]
The following table
outlines briefly the Appellant’s proposed additional read‑ins together
with those read-ins of the Respondent:
|
#
|
Respondent’s Read-in
|
Appellant’s Requested Read-in
|
|
1
|
Examination for Discovery of the Appellant on March
11, 2010:
Pages 66-67 – Q402-409
|
Examination for Discovery of the Appellant on March
11, 2010:
Pages 65-66 – Q398-401
|
|
#
|
Respondent’s Read-in
|
Appellant’s Requested Read-in
|
|
2
|
Examination for Discovery of the Appellant on March
12, 2010:
Pages 77-78 – Q363-368
|
Examination for Discovery of the Appellant on March
12, 2010:
Pages 78-80 – Q369-374
Pages 82-84 – Q394-400
|
|
3
|
Appellant’s responses to undertakings dated June 30,
2010:
Undertakings 597 and 661
|
Examination for Discovery of the Appellant on March
11, 2010:
Page 64 – Q389-391
|
[3]
The Appendix, attached
to my Reasons, sets out more fully those portions of the Respondent’s read-ins
in respect of which the Appellant’s Counsel brought their Motion together with
the Appellant’s proposed additional discovery read‑ins.
[4]
Subsection 100(3) of
the Rules provides:
100. (3) Where
only part of the evidence given on an examination for discovery is read into or
used in evidence, at the request of an adverse party the judge may direct the
introduction of any other part of the evidence that qualifies or explains the
part first introduced.
This Rule permits a Judge to allow the introduction of
additional portions of the discovery evidence at the request of the adverse
party where those additional portions would qualify or explain the initial
portions that are read-in. The use of the word “may” in this Rule indicates
that there is no absolute right in an adverse party to have additional portions
of the examination introduced into evidence.
[5]
Chief Justice Rip, in Glaxosmithkline
Inc. v The Queen, 2005 TCC 120, [2005] T.C.J. No. 109, at paragraph 2, of Appendix
I, in dealing with an application for additional read-ins pursuant to
subsection 100(3), compared the similarity of this Rule to Rule 289 of the Federal
Courts Rules in the following manner:
[2] … This
subsection is similar to section 289 of the Federal Courts Rules, headed
"qualifying answers", and permits evidence to be read-in if "the
Court considers is so related that it ought not to be omitted".
[6]
Chief Justice Rip in Glaxosmithkline
quoted from the decision of the Federal Court of Appeal in Canada (Minister
of Citizenship & Immigration) v Odynsky, [1999] F.C.J. No. 1389, where
the Court stated at paragraph 6, that
[6] …"to ensure that evidence from a transcript
of examination for discovery which is read in as evidence at trial is placed in
proper context so that it is seen and read fairly, without prejudice to another
party that might arise if only a portion of the content relevant at to a fair
understanding of the evidence read in is given."
[7]
To determine whether a
proposed additional portion of discovery evidence should be allowed in because
it “qualifies or explains” pursuant to subsection 100(3) of the Rules,
Chief Justice Rip, at paragraph 4, summarized the factors he considered as
follows:
• continuity of
thought or subject-matter;
• the purpose of introducing the
evidence in the first instance and whether it can stand on its own; and
• fairness in the sense that the
evidence should, so far as possible, represent the complete answer of the
witness on the subject-matter of the inquiry so far as the witness has
expressed it in the answers he has given on his examination for discovery.
[8]
Appellant’s Counsel
relied on a recent decision of Justice Boyle in Morguard Corporation v The
Queen, 2012 TCC 55, [2012] T.C.J. No. 48, which had been released the week
preceding the hearing of these present submissions on read-ins. Justice Boyle,
while in agreement with the approach taken in Glaxosmithkline, concluded
that this Court’s Rule 100(3) has a broader scope than the Federal Court’s Rule
289 as set out in the Odynsky decision and relied upon by Chief Justice
Rip in Glaxosmithkline.
[9]
Justice Boyle, at
paragraph 9 of the Appendix, states that Rule 100(3) is not narrowly restricted
to the completeness of the deponent’s responses to a specific question that is
read in but that it “…can
extend to all of the deponent's answers to questions on the particular subject
matter in appropriate circumstances.” If I read the Morguard decision
correctly, he seems to be interpreting Rule 100(3) in a manner broad enough to
allow additional read-ins for clarification, not only with respect to the
specific answers given to a specific question, but also to the “subject matter”
of the proceedings generally.
[10]
Of course, one of the
problems in applying such a broad interpretation to subsection 100(3) is that
parties may attempt to use read-ins as a method of getting evidence in “by the
back door” when such evidence should have been properly put before the Court
through the witness that is giving evidence during the hearing. Although it is
not clear from the Morguard decision, I would suggest that Justice
Boyle, when referring to “subject matter” in his reasons, must have intended
that the additional read-ins should be related and limited to the subject
matter of the deponent’s answers given in the examination for discovery
proceedings and not apply generally to the subject matter covered in the
discovery proceedings as well as the hearing. Even if I am correct in applying
this more restrictive approach, the Morguard decision still places a
much broader interpretation on subsection 100(3) than the courts have
previously followed.
[11]
I prefer the approach
taken in Glaxosmithkline because I do not believe that subsection 100(3)
is susceptible to the very broad interpretation that the Appellant, in relying
on the Morguard decision, would have me apply. In addition, although
Justice Boyle would have allowed the additional read-ins based on procedural
and substantive fairness, it appears from the Morguard reasons, at
paragraph 12 of the Appendix, that the parties resolved this issue on their own
after Justice Boyle communicated to the parties that he was “…not inclined to read anything further into
the Chief Justice's reasons and considerations set out in GlaxoSmithKline
and was inclined to apply them as written…”. This seems to indicate that,
although one can assign a broader scope to subsection 100(3), in the practical
application of 100(3) he would ultimately rely upon the considerations set out
in GlaxoSmithKline.
[12]
My conclusions in
respect to these three categories of proposed additional read-ins consider
whether there is a genuine nexus or connection between the Respondent’s
read-ins and the Appellant’s proposed additional read-ins. Consequently, as
suggested in subsection 100(3), my approach, in determining if the Appellant’s
additional read-ins qualify or explain the Respondent’s read-ins, took into
consideration the following: whether the Court could be mislead by the omission
of this portion of the examination for discovery; whether the additional
read-ins amounted to evidence that should have been addressed through the
Appellant’s testimony during the hearing; and, whether the evidence fairly represented
the entire response of the witness on the subject matter of that response to
the Respondent’s read-ins given during the discovery proceedings.
Read-In #1
[13]
These proposed
additional read-ins are not permitted because, although they are related
generally to the broad topic of employees of the corporation, they deal
specifically with the wages/salary paid to those employees while the
Respondent’s read-ins deal only with the employment of family members. The
proposed additional read‑ins do not qualify or explain the Respondent’s
read-ins because they are in respect to an entirely different area within the
broader topic. I find no connection between these two areas. In any event, I
note that Winston Blackmore, in cross-examination, was questioned with respect
to the wages paid to family members.
Read-In #2
[14]
I am allowing these
additional read-ins into evidence because they explain why Mr. Blackmore made
no representations to his banks respecting the UEP Trust. They provide me with
a more complete picture and there is certainly a connection between them.
Read-In #3
[15]
These additional
read-ins also provide a more complete picture and, therefore, I am allowing
them into evidence. The Respondent’s read-ins deal with possible corporate
documentation that could establish an agency relationship between the corporate
shareholders and the community. The additional read-ins relate to a potential
agency relationship and provide further clarification by addressing obligations
of the shareholders to the corporate profits. Again there is a connection and
continuity between these read-ins.
[16]
In summary, the Appellant’s
additional read-ins, numbers 2 and 3, will be allowed into evidence, but number
1 will not be permitted.
Signed at Ottawa, Canada, this 2nd day of April 2012.
“Diane Campbell”
CITATION: 2012 TCC 108
COURT FILE NO.: 2008-101(IT)G
STYLE OF CAUSE: WINSTON BLACKMORE AND
HER
MAJESTY THE QUEEN
PLACE OF HEARING: Vancouver,
British Columbia
DATE OF HEARING: January 23, 24, 25, 26, 30, 31,
February
1, 2, 6, 7, 8, 9, 10, 27, 28, 29,
March
1 and 2, 2012
REASONS FOR ORDER
BY: The Honourable Justice Diane Campbell
DATE OF ORDER: April 2, 2012
APPEARANCES:
|
Counsel for the
Appellant:
|
David R. Davies/Natasha S. Reid
|
|
Counsel for the
Respondent:
|
Lynn M. Burch/David Everett/Selena Sit
|
COUNSEL OF RECORD:
For the Appellant:
Name: David R. Davies
Firm: Thorsteinssons
Vancouver, British Columbia
For the
Respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa,
Canada
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