Galati v. The Queen, 2007 TCC 364

Citation: 2007TCC364

 

2004-3973(IT)G

 

BETWEEN:                                                        

ROCCO GALATI,

 

Appellant,

 

                                                                         - and -

 

HER MAJESTY THE QUEEN,

 

                                                                                                                                                    Res.

Respondent.

 

 

                                           CERTIFICATION OF TRANSCRIPT OF

                                                    REASONS FOR JUDGMENT

 

 

Let the attached certified transcript of the Reasons for Judgment delivered orally from the Bench at Toronto, Ontario on April 24, 2007, be filed.

 

 

 

 

_______       _________”E.A. Bowie”________________

                                                                       Bowie J.

 

 

Signed in Ottawa, on June 27^th, 2007.

 

                                                                                            Court File No. 2004-3973 (IT)G

 

                                                 TAX COURT OF CANADA

 

                                                IN RE:   the Income Tax Act

 

BETWEEN:

 

                                                         ROCCO GALATI

                                                                                                                                Appellant

 

                                                                   - and -

 

                                              HER MAJESTY THE QUEEN

 

                                                                                                                            Respondent

 

                             ORAL REASONS FOR ORDER DELIVERED BY

MR. JUSTICE ERIC A. BOWIE

                                         in the Courts Administration Service,

                                Federal Judicial Centre, 180 Queen Street West,

                                                          Toronto, Ontario

                                      on Tuesday, April 24, 2007 at 11:17 a .m.

                                                                       

 

APPEARANCES:

 

Mr. Peter Martin                                                                                             for the Appellant

 

Mr. Andre LeBlanc                                                                                      for the Respondent

 

 

 

Also Present:

 

Mr. Colin Nethercut                                                                                          Court Registrar

 

 

                                       A.S.A.P. Reporting Services Inc. 8 2007

 

200 Elgin Street, Suite 1004              130 King Street West, Suite 1800

Ottawa, Ontario K2P 1L5                  Toronto, Ontario M5X 1E3

(613) 564-2727                                   (416) 861-8720

                                                                      (ii)

 

 

                                                                  INDEX

 

 

                                                                                                                                      PAGE

 

Oral Reasons for Order                                                                                                      1

 

 

 

*************

                                  Toronto, Ontario

--- Whereupon the excerpt commences at 11:17 a.m. on Tuesday, April 24, 2007.

THE REGISTRAR:  The hearing is resumed.

DECISION FROM THE BENCH:

JUSTICE BOWIE:  The affidavit of Mr. Berini certainly satisfies me that there has been a good deal of delay in this matter.  To some extent, the delay is explained but I do not think that the explanation to be found in the affidavit of Lisa Moon Sami(ph) satisfactorily explains all of that delay.

Having said that, the appellant has paid the tax; that does not seem to be in dispute.  There is no evidence of specific prejudice to the respondent by the delay that can=t be compensated in costs.

I understand the respondent=s frustration at trying to get this matter into court.  There has been a considerable volume of correspondence exchanged to that end.  It might have been more effective to have a bit less correspondence and a considerably earlier motion.

So far as I can make out, the Order of Mr. Justice Archambault was made on a status hearing on the initiative of the Court rather than either of the parties.

If I understand correctly, the appellant has at this point delivered a list of documents.  There was some suggestion, at least in argument this morning, that perhaps that list of documents is not complete.

All in all, I don=t think in those circumstances that it would be appropriate to dismiss this action at this point without the appellant having the benefit of a trial, if he truly wants a trial.  Whether he wants a trial is something that can only be found out by fixing a trial date; I propose to do that.

There are lots of dates available during July and August.  Mr. Martin, what is the appellant=s availability?

MR. MARTIN:  The appellant is available; the best dates would be the last week of July or the last week of August.

JUSTICE BOWIE: Mr. LeBlanc?

MR. LEBLANC:  The last week of August would do.

JUSTICE BOWIE:  The last week of August?

MR. LEBLANC:  Yes.

JUSTICE BOWIE:  A little earlier, you wanted the earliest possible date.

MR. LEBLANC:  I had the choice in being at my cottage in the last week of July or spending it with Mr. Galati.  I think I prefer the last week of August.  I have been waiting so many years.

JUSTICE BOWIE:  As long as both sides are happy with the last week of August, so be it.

How long is it going to take?   Mr. Martin, how long is the appellant going to need to put in his case?

MR. MARTIN:  Unfortunately, I haven=t actually addressed that issue with Mr. Galati himself.  I can only go on the basis of what I see before me.  I am really hesitant to even give you a time estimation.  I think my friend would perhaps ...

JUSTICE BOWIE:  Mr. LeBlanc, yes?

MR. LEBLANC:  Yes.  Since we only have two or three properties to deal with, but ...

JUSTICE BOWIE:  We have a whole week of August 27.

MR. LEBLANC:  I believe that a day might ... it depends on how many witnesses they are going to call.  And if Mr. Luc Galati is the only witness, it seems that it is going to be, likely going to be a very short testimony, depending on his condition that day.

But a day might be short.  Maybe we can go safely with two days.  If that is too long, they can advise.

MR. MARTIN:  We can advise, yes.

JUSTICE BOWIE:  You probably don=t want to start on a Monday, given the time of year.

MR. LEBLANC:  You are correct.

JUSTICE BOWIE:  I am going to suggest Tuesday, August 28.  I am going to ask you both to indicate to the trial coordinator within a couple of weeks, let=s say by the end of next week, what your best estimate is.  I think Mr. Martin, as the appellant, you are the one from whom that estimate is most important.

MR. MARTIN:  Yes, certainly.

JUSTICE BOWIE:  If you would convey that to the trial coordinator and to Mr. LeBlanc, Mr. LeBlanc will then convey to the trial coordinator and to you what his estimate is of the time to put in his case.

Alternatively, the two of you could get together and agree on a length of time and then jointly tell the trial coordinator what you have settled on.

MR. MARTIN:  Certainly.

JUSTICE BOWIE:  I leave it up to the two of you to do it, whichever of those ways you like.  But the whole week of August 27 is available.  If you decide you want a whole week, then do it quickly and we will give you that whole week.  Otherwise, you can have all of the four remaining days or so much of it as you need.  I think that is the best we can do.  If you let us know within a couple of weeks that it is less than four days, we will be able to fill the rest of that time with something else.

MR. LEBLANC:  Thank you, very much.

JUSTICE BOWIE:  If either party wants to have an examination for discovery, they can have it by the end of May -- the end of May or not at all.  If either party has a discovery and there are undertakings resulting from it, they are to be fulfilled by the end of June.  If there are to be any supplementary lists of documents, they are to be filed at least a week before any scheduled examination for discovery or they are going to require leave of the Court to file them.

In other words, Mr. Martin, if there is a discovery scheduled to be held in the middle of May, you can file a supplementary list but not later than seven days before that examination for discovery is scheduled to be held.  It is always possible that something pops out on either side at the last minute, and a supplementary list seems to be a desirable thing to file.  But if it is after that deadline of a week before any scheduled discovery, then it is going to require leave of a judge and the judge is going to be me because I am going to become the case management judge in respect of this matter.  Any order granting leave to file a supplementary list beyond that date would require very convincing evidence as to why that document or the documents on that list had not been included in an earlier list.

MR. LEBLANC:  Justice, considering that the seven days prior to discovery will be short in terms of notice, can we include in the order that the respondent be provided as well with a copy of the additional documents listed?  That should be for either party, additional documents -- not filing with the Court.

JUSTICE BOWIE:  You mean copies of the document, along with the list?

MR. LEBLANC:   Yes.  Because the list may not be very helpful.

JUSTICE BOWIE:  Yes.  Any supplementary list, if it is to be filed, is to be accompanied by copies of the documents on the list.

MR. LEBLANC:  For serving purposes, certainly -- not for filing, but for serving purposes.

JUSTICE BOWIE: For serving purposes, yes, not filing.

MR. LEBLANC: Thank you.

JUSTICE BOWIE:  If either party wants to have a case management conference at any point in time then they can apply to the trial coordinator to arrange for a telephone conference.

I think we should have a telephone conference in any event.  During the summer is a difficult time to do it, perhaps.  Is a telephone conference in the last week of July something that could be easily arranged, or the first week of August?

MR. LEBLANC: Or the third week of July would be preferred.

JUSTICE BOWIE:  The third week of July.  Mr. Martin?

MR. MARTIN: I am sure that would be fine.

JUSTICE BOWIE:  All right.  I think we should do that.  In an ideal world, which this seldom is, it will take about three minutes because you will both tell me that everything is on track for trial at the end of August.  I think I would take some comfort from hearing that.

Mr. Martin, you are going to be on the record for the appellant?

MR. MARTIN:   I am not sure if I am at this stage.  I haven=t discussed the scope of my retainer with Mr. Galati.

JUSTICE BOWIE:  All right.  I have a feeling that the Rules provide that an appearance automatically gets you on the record, unless the appearance is specifically for a limited purpose, or something of the kind.  It is not a rule I have read lately.

MR. MARTIN:   Yes.

JUSTICE BOWIE:  I simply caution you that you might want to look at that rule and see whether, if you are not going to be on the record henceforth, you may have to so indicate to the Court in writing or something of the kind.

MR. MARTIN:   Yes.  Thank you.

JUSTICE BOWIE:  Or you may find that you are solicitor of record by operation of the rule.

MR. MARTIN:  Yes.

JUSTICE BOWIE:  Anything else that either of you would like to include in the order?  There is the matter of costs, of course.

MR. LEBLANC:  Yes.  We would like the matter of costs to be payable forthwith, to the respondent.

JUSTICE BOWIE:   Yes.

MR. MARTIN:  Justice, I was mentioning in my submissions at the end there, although there were lots of reasons for my friend=s motion, as I said, perhaps if it had been brought before January of this year, I think that as a result of what happened in January, it was inappropriate for my friend to bring this motion.  I don=t think is a time when costs would be appropriate.

In the circumstances of the history, I am not asking for costs for today=s appearance.  But I also don=t think that my friend should be entitled to them because this isn=t the appropriate time for him to have brought this motion.

JUSTICE BOWIE:   I know your position with respect to costs.  Given the totality of the history of this matter, I think it is appropriate to make an order as to costs.  I think a thousand dollars payable forthwith for the two motions that were before us this morning is appropriate.

The cases I think indicate pretty clearly that if the costs are in any event of the cause, as they should be in this case, that they should be payable forthwith.  I am going to make that by May 7.

If there is nothing else, gentlemen?

MR. LEBLANC:   No, we thank you.

JUSTICE BOWIE:  We will take five minutes and then hear the next motion.

MR. LEBLANC: Thank you, sir.

MR. MARTIN:  Thank you.

THE REGISTRAR:  The Court is in recess for five minutes.

--- Whereupon the hearing was concluded at 11:30 a.m. on Tuesday, April 24, 2007.