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Citation: 2006TCC184
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Date: 20060321
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Docket: 2004-3594(GST)G
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BETWEEN:
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GENERAL MOTORS OF CANADA LIMITED,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR ORDER
CampbellJ.
[1] This is a Motion pursuant to sections 53, 108 and 110 of the Tax Court of Canada Rules (General Procedure) (the "Rules") brought by the Appellant for the following:
1. Ordering the Respondent to prepare for and attend a continuation of the discovery of the Respondent, (the "Discovery");
2. Ordering the Respondent to answer questions 28, 41, 54, 62, 64, 89, 90, 92, 94 and 95 of the Discovery and all other proper questions asked at a continuation of the discovery;
3. In the alternative, ordering that paragraph 5(f) of the Reply to the Notice of Appeal be struck; and
4. Directing the Respondent to pay forthwith the costs of the motion, any costs thrown away and the costs of the continuation of a Discovery, all on a solicitor and client basis.
[2] The appeal is from an assessment for the period November 1, 1997 to December 31, 1999. The Appellant provides several pension plans to both its salaried and hourly wage employees. The assets in these plans are invested and administered using the services of various investment bankers, who charge fees and GST in respect of the services. Pursuant to section 169 of the Excise Tax Act (the "Act"), the Appellant claimed input tax credits (ITCs) in respect to the GST paid on the services. Canada Revenue Agency (CRA) adjusted the Appellant's net tax to deny the ITCs. The Appellant states that, as administrator of the pension funds and the recipient of the supply of the services acquired in relation to its commercial activities, it is entitled to claim ITCs. The Appellant further claims that it should not be required to charge GST on a notional re-supply of the services to the pension plans and consequently the denial of ITCs is incorrect. In the Notice of Appeal the Appellant raised the alternative reason for its appeal, at paragraph 15, where it stated that the services provided to the Appellant by the investment managers were GST exempt financial services as defined within the meaning of subsection 123(1) of the Act. In response to this alternative reason, the Reply to the Notice of Appeal included the following assumption at paragraph 5(f):
5. In assessing the Appellant to deny the input tax credits claimed by the Appellant, as pleaded in paragraph 10 of the Notice of Appeal, the Minister of National Revenue (the "Minister") relied on, inter alia, the following assumptions or findings of fact:
...
f) the investment management services were not a service listed in paragraphs (a) to (m) of the definition of a financial service under the Act;
[3] On January 23, 2006, after the commencement of examination for discovery proceedings in respect to the Respondent's nominee, Aaron Wong, Appellant counsel, after posing question 95 to Mr. Wong, adjourned the discovery pending a motion to this Court.
[4] The Appellant's position is that the discovery proceedings were "... littered with excessive and improper interference and objections by counsel for the Respondent; that the nominee for the Crown was evasive and unresponsive; and that attempts on my part to get the nominee to answer the question as opposed to being evasive and unresponsive were met with objections that were entirely improper" (Transcript, page 10). Consequently the interruptions were so serious according to the Appellant that it was necessary to adjourn the discovery and bring this motion.
[5] Appellant counsel relied on the case of Kudlak v. Sutherland, [2005] O.J. No. 3395 to support his argument that the Respondent's interventions were excessive and should not be tolerated. At paragraph 16 of that decision, Justice Pierce discussed those circumstances where interjections would be allowed by counsel whose client was being examined:
1. To permit counsel to understand the question put to his client, in order to determine whether it is a proper question.
2. Once counsel understands the question, he may interject only to object... An objection should be identified as such, with the grounds succinctly stated. An interjection that does not fall within the above principles is merely interference.
and those circumstances where interjections would not be allowed:
3. Counsel must not answer questions for a witness whose answer is wrong.
4. Counsel must not lead the witness after the witness has given a damaging answer.
5. Counsel must not answer to correct or clarify a confusing answer.
6. Counsel cannot communicate with the client during examinations. ...
7. Counsel may re-examine, if necessary ... The re-examination is restricted to correcting answers that are wrong or ambiguous.
[6] The Respondent's position is that the Appellant prematurely terminated the discovery when it should have been completed and then if necessary a remedy sought. Respondent counsel denies that there was interference with the proceedings and that the interventions were to prevent irrelevant and/or repetitive questions from being asked. Counsel relied on Robert White's book, The Art of Discovery at page 130 (Tab 5 of Appellant's submissions) to argue that he was entitled as defending counsel to intervene, as he did during the examination proceedings, for the following reasons:
1. To see that the questions asked of his client are proper, and to object to any that are not.
2. To see that his witness participates properly in the discovery.
3. To provide documents from his client's production, as requested.
4. To decide upon and give appropriate undertakings.
5. Learn the theory of the opposing case.
[7] The three principle objectives of discovery proceedings were stated in Modriski v. Arnold, [1947] 3 D.L.R. 321 (Ont. C.A.) as follows:
1. To enable the examining party to know the case he has to meet;
2. To enable him to procure admissions which will dispense with other formal proof of his own case; or
3. To procure admissions which will destroy his opponent's case.
More recently, some decisions have added a fourth objective: (Violette v. Wandlyn Inns Ltd., [1995] N.B.J. No. 574:
4. To facilitate settlement.
[8] The scope of these objectives has resulted in the tendency by Courts "not to circumscribe the avenues of discovery but to widen them" (Henderson v. Mercantile Trust Co. (1922), 52 O.L.R. 198. in Violette v. Wandlyn Inns Ltd.). However it is also clear that discoveries should never become general fishing expeditions. As a result, the issue of relevancy in respect to what is at issue in the pleadings is crucial when determining which questions counsel will be permitted to ask at a discovery. The issue of relevancy was considered at length by Christie A.C.J. in Shell Canadav. The Queen, 97 DTC 247. In Baxter v. The Queen, 2004 DTC 3497, Chief Justice Bowman set out the following principles that should be applied respecting relevancy in discovery proceedings at paragraph 13 of the decision:
(a) Relevancy on discovery must be broadly and liberally construed and wide latitude should be given;
(b) A motions judge should not second guess the discretion of counsel by examining minutely each question or asking counsel for the party being examined to justify each question or explain its relevancy;
(c) The motions judge should not seek to impose his or her views of relevancy on the judge who hears the case by excluding questions that he or she may consider irrelevant but which, in the context of the evidence as a whole, the trial Judge may consider relevant;
(d) Patently irrelevant or abusive questions or questions designed to embarrass or harass the witness or delay the case should not be permitted.
[9] Being mindful of the case law in this area, I turn now to the specific questions in issue.
Question 28 (Page 6 of the Transcript of Discovery):
Q. 28 Mr. Meghji: May I take a look at the T2020s, please.
Mr. McLaughlin: I'm going to object to that. I don't want to disclose this right now until we've had a chance to review that. There could be some privileged information in it.
Mr. Meghji: You should review it and I want the document before this discovery is finished today and I'll tell you why, Mr. McLaughlin, because I'm trying to avoid a continuation of the discovery. If you refuse to produce that document now and I have to continue the discovery, then I will take the position that the document is properly producible and a further discovery was forced as a result of your failure to disclose.
Mr. McLaughlin: That's fine.
Mr. Meghji: Can you review it before we finish the discovery today and advise ...
Mr. McLaughlin: I'll take it under advisement.
[10] The Appellant argued that this document, T2020, is not privileged as Mr. Wong, the Respondent's nominee, had confirmed in response to question 21 that it was his communication to the Appellant. The Respondent's position is that he properly objected to the question because the document may contain privileged information. He did undertake to review the document and to provide his advice concerning privileged information. When the Appellant ended the discovery there was no opportunity for this review.
[11] I believe the Respondent quite correctly had the right to make this request and to continue to object to the Appellant's continued questions. This document may or may not contain privileged information. The Respondent had not contacted the Appellant between the termination of the discovery on January 23, 2006 and the hearing of this motion on February 14, 2006 to advise if in fact the document contained privileged information. The Respondent offered no explanation as to why he has not completed a review and advised the Appellant accordingly. He has certainly had ample time to do so. There has been no reason offered for this delay and I am therefore directing the Respondent to make this determination and communicate with the Appellant within ten days from the date of this Order. If the Respondent determines that there is nothing in this document that is privileged, the continuation of the discovery will be permitted to enable the Appellant to question the Respondent's nominee in respect to those portions of document T2020, which are not privileged.
Questions 41 and 54 (Pages 9-10 of Transcript of Discovery):
Q. 39 Mr. Meghji: So the document is communications between you and General Motors.
Mr. Wong: More than that, maybe more than that.
Q. 40 Tell me what else.
Mr. Wong: Because I have a habit of writing down whatever my internal with the other section of our staff of the CRA.
Q. 41 Which other sections?
Mr. McLaughlin: Just stop. Don't answer the question. I said before in terms of the document, we'll review it and we'll get back to you. Things that he may have said with other members of this staff are not necessarily relevant, so we're going to determine if that's relevant. I'll object to all the rest of your questions if you'd like to keep asking those questions.
Mr. Meghji: I'm going to continue asking, you can object, because it will go to costs. You've put a person forward. He is either unprepared because he hasn't reviewed documents that are relevant, or he is prepared and you're refusing to let him answer relevant questions.
Mr. McLaughlin: Put your questions to him.
Q. 54 Would you undertake to inquire of rulings what they have in their file and produce it, please?
Mr. Wong: No.
Mr. McLaughlin: We don't do that. You want an undertaking to have rulings in Ottawa review what's in their file behind this particular ruling.
Mr. Meghji: Yes.
Mr. McLaughlin: Just this ruling and to produce that.
Mr. Meghji: Yes.
Mr. McLaughlin: We've produced the ruling and what we'll do is we will take that under advisement for subject to privilege and we'll indicate what, once we make that query, what in fact we can produce, but we're taking that under advisement.
[12] Question 41 is a follow-up to question 28 while question 54 concerns a request for further documentation. The Appellant's position is that the Respondent is not seeking privileged communication at all and that the ruling, which has already been provided, addresses only the first issue in this appeal, which is whether the Appellant is entitled to claim ITCs. The ruling is silent respecting the alternative issue of whether the investment management services fall within the exempted list enumerated in the definition of financial services, paragraphs 123(1)(a) to (m) of the Act.
[13] The Respondent's position is that the communications are part of the Minister's "state of mind" and are not relevant. He relies on Silicate Holdings Limited. v. Canada, 2001 DTC 63 to argue that the reasons, respecting why the assessment occurred, are irrelevant.
[14] Since question 41 is a follow-up to question 28, and relates to the document T2020 taken under advisement by the Respondent, my conclusions respecting question 28 will also apply to this question.
[15] As for the rulings file, referenced in question 54, the Respondent again has failed to communicate in a timely manner with the Appellant. I am therefore directing the Respondent to have the rulings file reviewed, make a determination and communicate with the Appellant within ten days from the date of this Order. According to the discovery proceedings, the ruling itself appears to reference only the primary relief sought, that is, the entitlement to ITCs. If there is additional information on the rulings file concerning the alternative argument, which the Respondent determines is not privileged, the Respondent shall communicate this information to the Appellant within ten days of the date of this Order and the discovery shall continue to enable the Appellant to question the Respondent's nominee in respect to the portions of the rulings file which the Respondent determines are not privileged.
Question 62 (Pages 15-16 of the Transcript of Discovery):
Q. 62 Mr. Meghji: Paragraph 5 says: The following assumptions or findings of fact ... Now, I'm happy if your counsel answers this question. Is there a distinction between assumptions and findings of fact or can I assume it means the same thing?
Mr. McLaughlin: You can assume it means whatever you'd like. Just direct the question.
Mr. Meghji: Q. What do you mean by findings of fact?
Mr. McLaughlin: I'll answer that. Again, these are the assumptions and the findings of fact made by the Minister and they're set out.
Question 64 (Page 16 of the Transcript of Discovery):
Q. 64 Mr. Meghji: Mr. McLaughlin, I'm only asking you the question because we all understand, we litigators understand what assumptions are. I've never seen a pleading from the Justice Department which refers to assumptions or findings of fact. I'm just trying to see if there is anything that I'm missing. Is there something unique about findings of fact?
Mr. McLaughlin: I don't know what you're missing, but I can certainly say that this paragraph, paragraph 5, sets out the basis of the denial of the input tax credits by the Minister in so assessing and it sets out the facts that you would need ...
[16] Questions 62 and 64 were directed partly to the Respondent counsel and partly to the Respondent's nominee, Mr. Wong. I believe that when Respondent counsel continued to respond to questions, he only assumed, without further direction from the Appellant, that the questions were open to him to answer. If the questions had been directed clearly to the nominee, Mr. Wong, then Respondent counsel should refrain answering unless he has an objection to make. These questions should be answered by the Respondent's nominee because they do not involve analyzing and providing an opinion of law. It is simply understanding the wording in the Reply to the Notice of Appeal. However if I were not ordering a continuation of the discovery in respect to the other questions, questions 62 and 64 alone would not warrant a continuation. They can be asked however because I am ordering a continuation.
Questions 89, 90, 92, 94 and 95 (Pages 22 to 26 of the Transcript of Discovery):
Q. 89 Mr. Meghji: You went through the definition of financial services (a) to (m), looked at each of those, and concluded that this didn't fit into each of those. Is that what you did? The question is to the witness. Object and state your objection.
Mr. McLaughlin: I'm going to state the objection.
Mr. Meghji: What's your objection?
Mr. McLaughlin: Don't answer the question. The witness said that they were taxable.
Mr. Meghji: Hang on. The question is very specific, Mr. McLaughlin, and I'm putting you on notice that I consider this to be coaching. Be careful what you say.
Q. 90 Mr. Meghji: The question is, did you look through each of (a) to (m) and examine to see if these services fit into that definition? Did you or did you not?
Mr. McLaughlin: Don't answer.
Q. 92 Mr. Meghji: He didn't answer the question and I'm going to ask it again. The question is, did you, for example, look at the definition in paragraph (a) to see if this fit in? Did you or did you not?
Mr. McLaughlin: Don't answer the question.
Mr. Meghji: Mr. McLaughlin, I'm telling you for the record right now that that question has not been answered, it goes directly to the assumption, and as sure as the sun comes up tomorrow morning we are going to be before a motions judge if you direct the witness not to answer the question. The question has not been answered.
Q. 94 Mr. Meghji: No, I'm not asking for an interpretation. I am not asking for an interpretation. I'm asking, did you understand the service, did you look at (a) and concluded that it didn't fit into (a)? That's what I'm asking.
Mr. McLaughlin: Just (a).
Mr. Meghji: I'm going to go through each of them because you have pleaded, you have alleged as a fact that he did that.
Mr. McLaughlin: I know what's in there, but I'm asking you, you're going to ask him every single paragraph.
Mr. Meghji: I'm going to ask him did you look at the serve and conclude it didn't fit into (a). Did he look at the service and conclude it didn't fit into (b)? Because that's what you've told me he did.
Mr. McLaughlin: He told you they were taxable.
Mr. Meghji: That's not what I asked him. That's not what I asked him, Mr. McLaughlin. That was not responsive to my question.
Mr. McLaughlin: If you want to ask him - I have no problem with the question phrased in the format, and you asked it before, did you look at these investment management services and conclude they did not fit into (a) to (m). That's all you have to ask him and he answered that question.
Mr. Meghji: I'm asking you the question and I'm going to tell you this right now. If you direct the witness not to answer the question I'm about to ask, Mr. McLaughlin, I'm going to adjourn the discovery right now and we're going before a motions judge. I'm going to put my question to the witness and you decide.
Q. 95 Mr. Meghji: Mr. Wong, when you raised this assessment, did you review the definition of financial services and conclude that this investment service did not fit into paragraph (a)? Yes or no? Did you or did you not do that?
Mr. McLaughlin: Don't answer the question.
Mr. Meghji: This discovery is adjourned pending a motion before the Tax Court judge. Thank you.
[17] All of these questions relate to the same subject matter. Questions 76, 77 and 78 are also pertinent to my discussion of whether the Respondent nominee must answer these questions.
Q. 76 Mr. Meghji: The Attorney General of Canada alleges that when you raised this assessment you, sir, concluded that the investment management services were not a service listed in paragraphs (a) to (m) of the definition of a financial service under the Act.
Mr. Wong: Yes.
Q. 77 Mr. Meghji: Is that true? did you in fact conclude that?
Mr. Wong: You are asking me about whether at the time I process the assessment?
Q. 78 Mr. Meghji: Yes.
Mr. Wong: I don't think so. I have not consider - I considered this as a taxable service.
[18] Appellant counsel certainly had the right to seek clarification in respect to Mr. Wong's response to question 78. It was an ambiguous response that was capable of several different interpretations. Respondent counsel should not have interfered as he did with the questions that followed and in doing so he was attempting to correct and elicit a particular response from the nominee - something he is not permitted to do at this point in discovery. The nominee's response needed to be clarified because Appellant counsel would have difficulty in relying on it in any meaningful way at the eventual hearing of this appeal. By interfering in the manner he did, Respondent counsel effectively shut the witness down from answering. Appellant counsel must be permitted to conduct his examination of a witness, put forward by the Respondent, without such interference. After listening to the submissions of Appellant counsel and from a close scrutiny of the transcript of discovery, the question posed to the Respondent's nominee was clearly whether he had looked specifically at the service provided and how he understood what that service was in order to reach the conclusion that it did not fall under the list contained in paragraphs 123(1)(a) to (m). When Respondent counsel stepped in and interfered in the way he did, the witness was essentially counselled in his response to continue to state "It's taxable", which was not responsive to Appellant's questions.
[19] I conclude that Appellant counsel had the right to question the Respondent's nominee respecting the Minister's assumption as stated in paragraph 5 (f) of the Reply to the Notice of Appeal. Respondent counsel's objections were improper and amounted to interference in the examination of the witness by cuing him to not respond to the questions being posed to him. The discovery will continue therefore for the purpose of having the Respondent's nominee answer these questions.
Paragraph 5(f):
[20] In the alternative, the Appellant had requested that paragraph 5(f) of the Reply to the Notice of Appeal be struck if the Respondent was not ordered to continue the discovery and answer questions. Since I have concluded that the discovery proceedings will continue, this alternative argument need not be addressed. However both parties spent time on this argument and I will therefore give my views on the Appellant's request to strike the assumption.
[21] Justice Bonner in Morris v. Canada, 93 DTC 316 at page 317 summarized the principles dealing with applications to strike pleadings or portions of pleadings:
1. Generally speaking, allegations of fact in a statement of claim should be taken as being true or capable of being proven. The reference for that is Unterreiner v. Wilson [?] [Interreiner v. Wilson et al.], (1982) 40 O.R. 2nd 197, which was later affirmed by the Court of Appeal.
2. There is a heavy burden on the attacking party to show that it is clear and obvious that the pleading is scandalous, frivolous or vexatious, or that it is otherwise an abuse of the process of the Court. The authority for that proposition is Erasmus v. The Queen, 91 DTC 5415.
3. "Embarrassing" means that the allegations are so irrelevant that to allow them to stand would involve useless expense and would also prejudice the trial of the action by involving the parties in a dispute that is wholly apart from the issues. "In order that the allegations should be struck out from a defence on that ground, it seems to me that their irrelevancy must be quite clear and, so to speak, apparent at the first glance. It is not enough that on considerable argument it may appear that they do not afford a defence." That is a quotation from City of London v. Horner (1914), 111 LT 512, a decision of Pickford, L.J.
[22] A similar position was taken in Sweet v. Canada, [1999] F.C.J. No. 1539 at paragraph 6:
[6] Statements of claim are struck out as disclosing no reasonable cause of action only in plain and obvious cases and where the Court is satisfied that the case is beyond doubt (see Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735 at 740; Operational Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441 and Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959). The burden is as stringent when the ground argued is that of abuse of process or that of pleadings being scandalous, frivolous or vexatious (see Creaghan Estate v. The Queen, [1972] F.C. 732 at 736 (F.C.T.D.), Pratte J.; Waterside Ocean Navigation Company, Inc. v. International Navigation Ltd. et al., [1977] 2 F.C. 257 at 259 (F.C.T.D.), Thurlow A.C.J.,; Micromar International Inc. v. Micro Furnace Ltd. (1988), 23 C.P.R. (3d) 214 (F.C.T.D.), Pinard J. and Connaught Laboratories Ltd. v. Simthkline Beecham Pharma Inc. (1998), 86 C.P.R. (3d) 36 (F.C.T.D.) Gibson J.). The words of Pratte J. (as he then was), spoken in 1972, in Creaghan Estate, supra, are still very much appropriate:
[...] a presiding judge should not make such an order unless it be obvious that the plaintiff's action is so clearly futile that it has not the slightest chance of succeeding [...]
[23] Also Chief Justice Bowman in Niagara Helicopters Ltd. v. Canada, [2003] T.C.J. No. 65 at paragraphs 6 to 8 stated:
[6] It is in my view premature at this stage of the proceedings to determine that facts which counsel for the appellant considers to be a relevant and necessary part of the appellant's case are irrelevant. The authorities are undisputed that it is only where it is clear and obvious that a pleading is scandalous, frivolous or vexatious or an abuse of the process of the court that it may be struck out. (Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at 980; Erasmus et al. v. The Queen, 91 DTC 5415 at 5416).
[7] It is by no means clear and obvious that the impugned paragraphs are scandalous, vexatious or frivolous or an abuse of this court's process. The remedy of striking out portions of pleadings on such grounds is reserved for the most obvious of cases, such, for example, as Davitt v. The Queen, 2001 DTC 702.
[8] Whether an allegation is irrelevant is something that the trial Judge is in a position to determine in the context of all of the evidence at trial. It is inappropriate on a preliminary motion for a motions judge, who has heard no evidence, to decide that an allegation is irrelevant thereby depriving a party of the opportunity of putting the matter before the judge who presides the trial and letting him or her put such weight on it as may be appropriate.
[24] Generally speaking portions of pleadings will not be struck under section 53 of the Rules except in the most plain and obvious cases. Allegations will be taken as true and capable of being proven which make it a heavy burden to attack them. A trial Judge is in a much better position to deal with matters of weight and relevancy because it is the trial Judge who, after hearing all of the evidence, is best suited to make such a determination. Paragraph 5(f) is not scandalous or vexatious or frivolous. If it is to be struck because it is prejudicial or irrelevant, the case to do so must be clear and apparent. The definition of "financial services" in paragraphs 123(1)(a) to (m) is complicated. Justice Archambault in Skylink Voyages Inc. v. Canada, [1999] T.C.J. No. 159 at paragraph 28 acknowledged the difficulty with this definition as follows:
[28] In thus acting as an intermediary in the collection of the amount of the credit card slip, does Skylink provide a "financial service" within the meaning of section 123 of the Act? First of all, I must note that the wording of the definition of that term is far from clear. Even after a number of readings, it is difficult to understand its entire scope. How then can ordinary taxpayers grasp the extent of their tax liabilities? [See Note 6 below] Tax provisions should be drafted so that ordinary people can readily understand them without having to expend excessive amounts of time or money.
[Note 6: In view of the fact that these are highly specialized and often very technical matters, I dare hope that financial institutions are better able to understand their scope.]
[25] There has been no clear argument that would persuade me to strike paragraph 5(f). Since "investment management services" are not one of the items "specifically" listed in subsection 123(1) "financial service" (a) to (m), it is difficult to conclude that paragraph 5(f) of the Reply to the Notice of Appeal which states that "the investment management services were not listed in paragraphs (a) to (m) of the definition of 'financial services' under the Act", is frivolous or clearly irrelevant.
Costs:
[26] Although the Appellant requested costs on a solicitor and client basis in the Notice of Motion, it was not addressed during the hearing of the Motion. A number of cases have reviewed the fundamentals of solicitor and clients costs (Young v. Young, [1993] S.C.R. 3 (S.C.C.) and Canada v. Amway Corporation, [1986] 2 C.T.C. 339). I believe it is clear from the case law that the award of such costs is exceptional and would be given only in those instances where there is clearly reprehensible, scandalous or outrageous conduct by one of the parties. This is certainly not a case where I could find any such conduct. I think it is proper to leave the disposition of costs to the trial Judge.
Signed at Fredericton, New Brunswick, this 21st day of March 2006.
Campbell J.
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