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Dockets: 2005-1160(GST)G, 2005-1161(GST)G,
2005-1162(GST)G,
2005-1163(GST)G, 2005-1166(GST)G, 2005-1168(GST)G,
2005-1170(GST)G, 2005-1171(GST)G, 2005-1172(GST)G,
2005-1173(GST)G, 2005-1176(GST)G, 2005-1177(GST)G,
2005-1178(GST)G, 2005-1179(GST)G, 2005-1180(GST)G,
2005-1181(GST)G, 2005-1182(GST)G, 2005-1183(GST)G,
2005-1184(GST)G, 2005-1185(GST)G, 2005-1187(GST)G,
2005-1190(GST)G, 2005-1191(GST)G, 2005-1192(GST)G,
2005-1193(GST)G, 2005-1194(GST)G, 2005-1195(GST)G,
2005-1196(GST)G, 2005-1197(GST)G, 2005-1198(GST)G,
2005-1199(GST)G, 2005-1201(GST)G, 2005-1203(GST)G
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BETWEEN:
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COMMISSION SCOLAIRE DE VICTORIAVILLE,
COMMISSION SCOLAIRE DE L'ÉNERGIE,
COMMISSION SCOLAIRE DE COATICOOK,
COMMISSION SCOLAIRE DES PATRIOTES,
COMMISSION SCOLAIRE DU VAL-DES-CERFS,
COMMISSION SCOLAIRE DES HAUTES-RIVIÈRES,
COMMISSION SCOLAIRE DE LAVAL,
COMMISSION SCOLAIRE DES LAURENTIDES,
COMMISSION SCOLAIRE SIR-WILFRID-LAURIER,
COMMISSION SCOLAIRE PIERRE NEVEU,
COMMISSION SCOLAIRE DE LA RIVIÈRE DU NORD,
COMMISSION SCOLAIRE DES CHÊNES,
COMMISSION SCOLAIRE DES HAUTS-CANTONS,
COMMISSION SCOLAIRE DES BOIS-FRANCS,
COMMISSION SCOLAIRE DES SOMMETS,
COMMISSION SCOLAIRE DES GRANDES-SEIGNEURIES,
COMMISSION SCOLAIRE DE L'OR-ET-DES-BOIS,
COMMISSION SCOLAIRE DES HAUTS-BOIS-DE-L'OUTAOUAIS,
COMMISSION SCOLAIRE DE L'AMIANTE,
COMMISSION SCOLAIRE AU CŒUR-DES-VALLÉES,
COMMISSION SCOLAIRE DU LAC SAINT-JEAN,
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Appellants,
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and
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HER MAJESTY THE QUEEN,
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Respondent
[OFFICIAL
ENGLISH TRANSLATION]
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REASONS FOR ORDER
(Delivered
orally at the hearing of December 2, 2005, at Montréal, Quebec.)
McArthur J.
[1] The Respondent has brought a motion for
particulars in relation to certain allegations contained in the Notices of
Appeal pursuant to section 52 of the Tax Court of Canada Rules (General
Procedure) ("the Rules") and for an order extending the time for
filing the Respondent's replies to 45 days after the order of this Court.
[2] For the following
reasons, the motion is denied. In my opinion, the motion is premature at this
time.
[3] So there is no
suspense. The Appellants denied
the Respondents' requests for clarification on the basis that the allegations
contained in the Notices of Appeal are specific enough to inform the Respondent
of the true issue raised by the case.
[4] There is not
necessarily an identifiable section. Some of the cases involve generally
accepted constitutional conventions based on which a provision, or its
application, can be declared unconstitutional.
[5] In the second case,
practice does not require it. I do not see why we would have to do it at this
stage, as we do not have the advantage of the Minister's assumptions and do not
have the benefit of any of the Minister's arguments. We do not even know who
the witnesses will be.
[6] To provide some
context, in another proceeding, a consent judgment in favour of the Appellants
was rendered following an assessment under the Excise Tax Act with
respect to an input tax credit (ITC) refund claimed by the Appellants.
The Tax Court of Canada rendered a judgment for the Appellants in accordance
with the Consent to Judgment tendered before the Court. The statutory provision
that had been under attack was amended retroactive to the introduction of the
GST system. The Explanatory
Notes relating to the provision state as follows:
The legislation also provides a specific
authority for the Minister of National Revenue to reassess . . . for a
particular reporting period that had previously been assessed by the Minister.
. . . Accordingly, the Minister may make the reassessment whether or not the usual
limitation period under the Act for making the reassessment has expired and
despite any court decision . . . .
[7] In May 2004, the
Minister, contrary to the judgment of this Court, issued a notice of
reassessment disallowing the ITC refund that the Respondent herself had agreed to pay the
Appellants. The Appellants are appealing from this reassessment before the Tax
Court.
[8] I repeat that the
issue in this case is whether, and to what extent, the motion for particulars
must be granted.
[9] Section 52 of the Rules reads, in part:
52. Where a party demands particulars of an
allegation . . .
and, in French:
52. Si une partie demande des précisions
sur un fait allégué . . .
As one can see, the two versions are not identical.
The French version refers to a demand for particulars regarding an alleged
fact, while the English version merely refers to an allegation.
[10] In Sero v. The Queen, [2004] 2 F.C.
613, [2005] 2 C.T.C. 248 (F.C.A.), the Federal Court of Appeal referred to the
decision of the Supreme Court of Canada in Schreiber v. Canada, [2002]
3 S.C.R. 269, where LeBel J. observed, at paragraph 56:
A principle of bilingual statutory
interpretation holds that where one version is ambiguous and the other is clear
and unequivocal, the common meaning of the two versions would a priori
be preferred . . . Furthermore, where one of the two versions is broader than
the other, the common meaning would favour the more restricted or limited
meaning . . . .
[11] I also refer to Baxter v. The Queen, 2004 TCC 636, at tab 3, page 2009 of the Appellants' documents, where
Bowman A.C.J. stated that a question of law need not be answered.
[12] Applying these
principles to the case at bar, the English version appears to have more than
one possible meaning because it could refer to an allegation of fact or of law,
while the French version refers only to an allegation of fact. Consequently, the French version must be
preferred to the more ambiguous English version. In addition, the English
version has a broader meaning because it refers both to an allegation of fact
and of law, whereas the French version refers solely to an allegation of fact.
Consequently, the more precise version must be preferred.
[13] Thus, a demand for
particulars should apply only to allegations of fact, not allegations of law.
The Respondent refers to Six
Nations of the Grand River Indian Band v. Canada, Ont. Div. Ct., No. 690/99, April 12, 2000, [2000]
O.J. No. 1431 (QL). That case was heard under the Ontario
Rules of Civil Procedure, R.R.O.
1990, Reg. 194, both the English and French versions of which refer to an
allegation. Thus, there was no conflict between the two versions at the time of
that decision. Consequently, Six Nations is not apposite here.
[14] According to the
case law, it is not appropriate to order the production of particulars related
to the legal position that a party intends to take, because particulars are
limited solely to questions of fact.
[15] Thus, after
establishing that a demand for particulars pertains only to allegations of
fact, one must consider the purpose of the motion. Demands for particulars are governed by the principle
that the function of pleadings is to limit the issues to be tried and prevent
them from being enlarged to such an extent that the parties are no longer able,
prior to the hearing, to determine the true nature of the dispute, as
established in Gulf Canada Limited v. The Tug Mary Mackin and Sea-West
Holdings Ltd., [1984] 1 F.C. 884.
[16] In Gulf Canada, the Court listed the
objectives of particulars. There are six of them. The Respondent submits that,
in the case at bar, it is fair and reasonable to order the production of
particulars regarding the Appellants' allegation that a provision of the ETA or
a statute is unconstitutional. As worded, the allegation is so broad that the
Respondent cannot reasonably reply to it or prepare for the hearing without the
risk of being taken by surprise.
[17] In Satin Finish Hardwood Flooring,
T.C.C., No. 95-30(IT)G, March 27, 1995, Bowman J. observed, at paragraph
16:
The purpose of pleadings is to define the
issues to be decided by the court, not to provide a detailed outline of the
evidence that the parties intend to adduce at trial. The notice of appeal in
this case is adequate to raise the factual issue that must be decided and to
enable the Respondent to formulate a defence.
In the case at bar, the Notice of Appeal is adequate;
it raises the factual issue that must be decided and enables the Respondent to
formulate a defence. It is clear that the Appellant has no duty to provide, at
the pleading stage, the arguments that she intends to rely upon at trial. She
need only provide the factual allegations that she intends to rely upon in her
arguments at trial. Having regard to the Notice of Appeal, the Court should
decide whether other particulars are necessary.
[18] In the case at bar,
by looking at the Notice of Appeal, it seems clear which facts the Appellant
will rely upon to make her case. In conclusion, I accept the
Appellants' argument, and the motion is denied. Thank you.
JUSTINE MALONE: Pardon me. There is no order
concerning the time for filing the replies?
HIS HONOUR: And how many days are you asking for? 45?
JUSTINE MALONE: I don't remember; it's in the motion.
HIS HONOUR: I have it in front of me somewhere. Yes,
an order extending to 45 days. So it's granted.
Signed at Ottawa, Canada, the 16th day of January 2006.
McArthur
J.
Translation certified true
on this 20th day of February 2008
François Brunet,
Revisor
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