Cohl v. The Queen, 2005 TCC 467

Docket: 96-2512(IT)G Citation No.: 2005TCC467 Date: 20050722

BETWEEN:

MICHAEL COHL,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

____________________________________________________________________

Motion heard by telephone conference call on July 19, 2005

By: The Honourable Justice D.W. Beaubier
Appearances:
Counsel for the Appellant:	George E.H. Cadman, Q.C.
Counsel for the Respondent:	S. Patricia Lee, Eric Noble, Robert Carvalho and Gavin Laird

____________________________________________________________________

REASONS FOR ORDER AND ORDER

[1]      This motion by the Respondent is for:

1.        an order that the Appellant inform himself as to:

(a)       the records John Perkins has of calculations he did in relation to what the Appellant could earn from his investment in the Claridge;

(b)      John Perkins' recollection of any analysis or investigation he did of the Claridge on behalf of the Appellant;

(c)      what information or records John Perkins has relating to a later transaction on behalf of the Claridge investors and what investigation or analysis he did respecting that;

(d)      how long the negotiation was in respect to an investment into the Appellant's company by John Labatt Limited which gave rise to gains in 1987 and 1988.

2.       An order that the Appellant ask for John Perkins' documents respecting 1(a), (c) and (d).

Etc.

[2]      The motion is pursuant to Rules 95 and 110. Sub rule 95(2) and Rule 110 read:

95. (2) Prior to the examination for discovery, the person to be examined shall make all reasonable inquiries regarding the matters in issue from all of the party's officers, servants, agents and employees, past or present, either within or outside Canada and, if necessary, the person being examined for discovery may be required to become better informed and for that purpose the examination may be adjourned.

110. Where a person fails to attend at the time and place fixed for an examination in the notice to attend or subpoena, or at the time and place agreed on by the parties, or refuses to take an oath or make an affirmation, to answer any proper question, to produce a document or thing that the person is required to produce or to comply with a direction under section 108, the Court may,

(a)     where an objection to a question is held to be improper, direct or permit the person being examined to reattend at that person's own expense and answer the question, in which case the person shall also answer any proper questions arising from the answer,

(b)     where the person is a party or, on examination for discovery, a person examined on behalf of or in place of a party, dismiss the appeal or allow the appeal as the case may be,

(c)     strike out all or part of the person's evidence, including any affidavit made by the person, and

(d)     direct any party or any other person to pay personally and forthwith costs of the motion, any costs thrown away and the costs of any continuation of the examination.

Appellant's counsel stated that sub rule 95(3) applies. It reads:

95. (3) A party may on an examination for discovery obtain disclosure of the findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined that relate to a matter in issue in the proceeding including the expert's name and address, but the party being examined need not disclose the information or the name and address of the expert where,

(a) the findings, opinions and conclusions of the expert relating to any matter in issue in the appeal were made or formed in preparation for contemplated or pending litigation and for no other purpose, and

(b) the party being examined undertakes not to call the expert as a witness at the hearing.

The Court finds that John Perkins is not an expert respecting these aspects of this appeal. The evidence is that he is a mere witness and agent of the Appellant in these matters. His expert opinion is not being sought; rather the question is what he did when he was hired as the Appellant's agent respecting the transactions in dispute in his appeal or in matters relating to the Appellant's or Mr. Perkins' business or investment practises or possible investment intentions.

[3]      All that is being asked is that the Appellant make these inquiries and produce these records if he can get them. Those are reasonable requests for reasonable inquiries since they go to the heart of the issue in dispute in this appeal - all as set forth in sub rule 95(2) which describes the Appellant's duties in respect to his examination for discovery. They are important to the Respondent because his answers in examination for discovery are binding on the Appellant. But sub rule 95(2) does not require the Appellant to ask for the documents of third parties.

[4]      Appellant's counsel objected to the Respondent's request for Mr. Perkins' documents. Once again, if Mr. Perkins will give them to the Appellant, the Appellant must produce them; whether that occurs is up to Mr. Perkins. In any event, the Appellant does not object to the Respondent dealing directly with Mr. Perkins.

[5]      With respect to the particular wording of this Notice of Motion dated July 7, 2005, the Court orders:

1.        Paragraph 1 is ordered as worded because these propose reasonable inquiries which the Appellant should undertake of his agent Mr. Perkins pursuant to sub rule 95(2). In particular subparagraph (c) relates to the comparative degree and time of inquiry Mr. Perkins might spend respecting investments; subparagraph (d) relates to the possible intention the Appellant may have had in the Claridge acquisition.

2.        Paragraph 2 is merely that the Appellant inquire of Mr. Perkins and produce what Mr. Perkins gives him. Appellant's counsel agreed to this inquiry, but refused to ask for production of Mr. Perkins' documents. In many ways the refusal is understandable because they are Mr. Perkins' own documents and in the circumstances of this case and Mr. Perkins' relationship to it and the Appellant, Appellant's counsel's reasoning is valid. Sub rule 95(2) does not require the Appellant to ask for Mr. Perkins' documents and the objection to this by Appellant's counsel is valid. The order requested in this paragraph is denied.

3.        Because of the mixed results of this motion, the Appellant is ordered to re-attend the examination for discovery to comply with this order. The discovery is to proceed with each party paying its own expenses.

[6]      Costs are in the cause.

       Signed at Saskatoon, Saskatchewan, this 22^nd day of July 2005.

"D.W. Beaubier"

Beaubier, J.

CITATION:                                        2005TCC467

COURT FILE NOS.:                          96-2512(IT)G

STYLE OF CAUSE:                           Michael Cohl v. The Queen

PLACE OF HEARING:                      Ottawa, Canada

DATE OF HEARING:                        July 19, 2005

ORDER AND REASONS FOR

ORDER BY:                                       The Honourable Justice D.W. Beaubier

DATE OF ORDER AND

REASONS FOR ORDER:                  July 22, 2005

APPEARANCES:

For the Appellant:	George Cadman, Q.C.
Counsel for the Respondent:	Patricia Lee, Eric Noble, Robert Carvalho and Gavin Laird

COUNSEL OF RECORD:

       For the Appellant:

                   Name:                              George Cadman, Q.C.

                   Firm:                                Boughton Peterson Yang Anderson Law

                                                          Corporation

       For the Respondent:                     John H. Sims, Q.C.

                                                         Deputy Attorney General of Canada

                                                          Ottawa, Ontario