Citation: 2010 TCC 140
Date: 20100308
Docket: 2007-2759(IT)G
BETWEEN:
HESTY LEIBTAG,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
EDITED VERSION OF TRANSCRIPT
OF REASONS FOR ORDER
[delivered orally
from the Bench at Toronto, Ontario, on February 24, 2010]
Boyle J.
[1]
This is the second
motion heard this week brought by the respondent in respect of next week’s
scheduled three‑day trial. The respondent’s motion of two days ago was
for an order for substituted service of a subpoena on the appellant’s husband,
Mr. Verk. Appellant’s counsel intended to call Mr. Verk, however, the
Crown wished to subpoena him to ensure his attendance. The Crown had difficulty
serving him personally at his business address. I granted the respondent’s
motion for substituted service.
[2]
Today’s motion again concerns
a proposed witness, Mr. Leinwand, who is named on the appellant’s witness
list. The respondent decided earlier this month that it should also subpoena
Mr. Leinwand to ensure his attendance. The respondent wrote last week asking
of appellant’s counsel Mr. Leinwand’s address and telephone number so the
respondent could communicate with him and asked that this be provided by mid‑afternoon
two days ago, that is, the day we all spent here on the motion regarding
Mr. Verk.
[3]
Yesterday the
respondent wrote to the Court and copied appellant’s counsel asking that an
urgent motion be scheduled asking the Court to compel the appellant’s counsel
to provide the requested confirmation. There was no indication in that letter
whether respondent’s counsel had ever tried to follow up her original letter of
request with a phone call or in person at any point on Tuesday when we were all
here for the Verk motion.
[4]
I now understand that she
did not. No satisfactory explanation was given for this. However, I must infer
that relations between opposing counsel at this stage are strained, but I
cannot guess which, if either, side may be more the cause of that.
[5]
Following receipt of
yesterday’s letter regarding a motion to compel disclosure, the appellant wrote to respondent’s counsel and
copied the Court providing the phone number they had for Mr. Leinwand,
indicating they did not have an address for him, and pointing out that given
his phone number they assumed he lived outside Canada.
I now understand that Mr. Leinwand lives in Miami.
[6]
The respondent filed a
different motion with the Court this morning. The motion is for an order under
rule 119 for leave to examine Mr. Leinwand before the hearing and for
an order under rule 121 that such testimony be given outside Canada by the issuance by the Court of a commission. There
may have been some confusion in the notice of motion whether the respondent had
also or instead intended to ask for an order allowing Mr. Leinwand to
testify at the trial by teleconference. However, only rule 121 concerning
testimony before the hearing is referred to and not rule 143.
[7]
In hearing the motion I
questioned whether the rules 119 to 122 contemplated the Court ordering
and compelling a witness outside the jurisdiction to testify and whether there
was any jurisprudence where these rules had been so used.
[8]
It is not clear from
the wording of these rules that this is one of their purposes. I was not
referred to any case law on point.
[9]
In Mr. Justice
Miller’s decision in Ramnarine v. The Queen, 2001 DTC 991, the
person to testify via teleconference was the moving party’s own witness who
could be fully expected to testify if the Court’s leave for an alternate method
of testifying was granted. In the R. v. Dix decision, [1998] A.J.
No. 486, a criminal case decided by the Alberta Court of Queen’s Bench
involving murder, sexual transactions and the KGB, the judge described the
proposed witness in the first paragraph of his reasons as willing to give
evidence by video conference.
[10]
In this case, the moving
party cannot tell me that Mr. Leinwand is willing to testify if I grant an
order for alternate arrangements to him appearing at the trial in Toronto. She did not ask him that question in their telephone
conversation of a day or two ago. She might have asked him in the follow‑up
call she had scheduled with him for noon today, but she cancelled that call to
prepare for this motion.
[11]
In light of my concerns
about whether I had the power under rule 119 to compel someone to give the
alternate testimony for which leave may be granted, and given that appellant’s
counsel confirmed on the record to me that she had always intended to call
Mr. Leinwand since she first told respondent’s counsel that some time ago,
that she still intended to call him as a witness, and that she had no intention
of rethinking her decision to call him as a witness, the respondent withdrew
its motion.
[12]
I need therefore only
deal with costs. Appellant’s counsel has asked for solicitor‑client
costs. I am not satisfied that the facts today even approach warranting an order
for solicitor‑client costs. Such an order is, absent settlement offer
considerations that do not apply today, an extraordinary remedy for particularly
unpleasant behaviour.
[13]
I am fixing costs for
today’s motion at $1,000. It appears to have been brought because the
respondent left worrying about the service of subpoenas to ensure attendance of
key witnesses of the appellant until somewhat late in the day. The contact
information might well have been provided just as readily following a follow‑up
phone call or a personal reminder two days ago during the Verk hearing, as by
the surprise threat of a further motion.
[14]
Respondent had not
asked the proposed witness if he would testify, although they spoke recently
and this, to my mind, significantly impaired the motion’s prospects for success
on the issue of whether the Court even had jurisdiction to order such a motion.
[15]
Appellant’s counsel has
again had to spend the better part of a day responding to a motion when both
sides’ time might better be spent getting on with preparing for the substance
of next week’s trial.
[16]
We are adjourned. Thank
you, Ms. Bruce. Thank you Ms. Somerville Taylor and Mr. Court
Reporter.
Signed at Edmonton, Alberta, this 8th day of March 2010.
"Patrick Boyle"
CITATION: 2010 TCC 140
COURT FILE NO.: 2007-2759(IT)G
STYLE OF CAUSE: HESTY
LEIBTAG v. HER MAJESTY THE
QUEEN
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: February 24, 2010
REASONS FOR ORDER BY: The
Honourable Justice Patrick Boyle
DATE OF ORDER: March 8, 2010
APPEARANCES:
|
Counsel for the appellant:
|
Leigh Somerville Taylor
|
|
Counsel for the respondent:
|
Suzanne M. Bruce
|
ALSO PRESENT:
|
Court Registrar:
|
D. W. Burtnick
|
|
Court Reporter:
|
Catherine Keenan
|
COUNSEL OF RECORD:
For the appellant:
Name: Leigh Somerville Taylor
Firm: Richler
& Tari
Toronto, Ontario
For the
Respondent: John H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa, Canada
Email this Content