Date: 20011105
Docket: 1999-3815-IT-G
BETWEEN:
DANIEL RAMNARINE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasonsfor
Order
Miller, J.T.C.C.
[1]
This is a motion by the Appellant for the following:
(1)
An Order under Rule 143 or pursuant to the inherent jurisdiction
of the Court, directing that the evidence of the non-Saskatchewan
resident witnesses to be called by the Appellant, be received by
the Court by affidavit or telephone;
(2)
In the alternative an Order under Rule 119 directing that the
non-Saskatchewan resident witnesses of the Appellant may be
examined in their jurisdiction of residence before the hearing of
the appeal, for the purpose of having such testimony tendered as
evidence at the hearing of the appeal; and
(3)
An Order that the costs of this application shall be costs in the
cause.
Facts
[2]
Mr. Ramnarine was assessed for the 1994 and 1995 taxation years
on the basis of what is commonly called a net worth assessment.
Part of Mr. Ramnarine's grounds for appeal was that the
Minister failed to take into account monies that he received from
his former home of Guyana. Mr. Ramnarine moved to Regina,
Saskatchewan in 1978 at the age of 45, due to what he described
in his affidavit as a deteriorating political and economic
climate in Guyana. In anticipation of leaving, Mr. Ramnarine
claims to have disposed of assets and converted funds into
foreign currency, which he gradually and secretly withdrew from
Guyana over the years. Specifically in 1994 and 1995 he claims to
have received $15,000 each year from Guyana. The
out-of-jurisdiction witnesses Mr. Ramnarine wishes to
call are:
(1)
Mr. Ronald Reid who is from Guyana and presently resides in
Ontario. Mr. Reid was employed with the Royal Bank of Canada in
Guyana and from 1969 to 1974 was the Manager of the branch of the
Royal Bank with whom the Appellant dealt. The Appellant indicated
in his affidavit that Mr. Reid has knowledge of and will testify
as to the following:
-
Mr. Ramnarine's assets and business affairs during that
period of time;
-
The currency exchange controls and restrictions in Guyana;
-
The various methods by which Guyanese residents were attempting
to obtain foreign currency and move that currency out of Guyana;
and
-
The political climate in Guyana and the corresponding migration
of Guyanese residents from Guyana.
(2)
Mr. Gordon Pearce who resides in Ontario. Mr. Pearce is a
Canadian who was a teacher in Guyana from 1971 to 1973. He was
also in Guyana in 1976. His testimony is expected to cover the
following:
-
The political climate and racial tensions in Guyana when he was
there;
-
The manner in which he assisted Mr. Ramnarine in obtaining
foreign (Canadian) currency; and
-
The migration of Guyanese residents from Guyana during that
time.
(3)
Rayman Sripal who is a businessman resident in Guyana. His
testimony is to cover the following:
-
The political, economic and racial situation in Guyana as
relevant to the appeal;
-
The arrangement by which he held foreign currency for the
Appellant and the delivery of such currency to the Appellant in
1994 and 1995; and
-
The foreign exchange restrictions in place in Guyana and
activities of Guyanese residents to obtain foreign currency, and
transfer those funds from Guyana.
(4)
Aubrey Denobrega (the Appellant's accountant in Guyana),
Ramesh Maraj (a businessman) and Watson Bowling (the
regional director of the government's National Insurance
Scheme) who are all residents of Guyana. They are to testify as
to the business and properties which the Appellant owned and the
value of such properties.
[3]
Mr. Ramnarine is now retired and living on old age pension. He
claims not to have sufficient resources to provide the witnesses
with conduct money to appear in Regina. The Appellant's
counsel suggested the potential increased tax burden on the
Appellant from the assessments was approximately $8,500 a year,
though Respondent's counsel indicated the amount was well in
excess of $12,000 a year.
[4]
Portions of the transcript from discovery were provided in which
Mr. Ramnarine indicated he travelled to Guyana yearly until
1990, though went again in 1994 with his wife. There was no
evidence any of the witnesses referred to could not for health or
any other reason travel to Regina. The issue was one of costs.
There was no evidence of the costs or availability of
videoconferencing facilities in Guyana.
Appellant's Arguments
[5]
Appellant's counsel's starting point in his argument was
section 13 of the Tax Court of Canada Act which
states:
13. The Court has, with respect to the attendance, swearing
and examination of witnesses, the production and inspection of
documents and other matters necessary or proper for the due
exercise of its jurisdiction, all such powers, rights and
privileges as are vested in a superior court of record.
[6]
He then went on to cite specific rules:
144.(1) Unless these rules provide
otherwise, witnesses at a hearing shall be examined orally in
Court and the examination may consist of direct examination,
cross-examination and re-examination.
143.(1) Before or at the hearing, the Court
may direct that evidence of a particular fact shall be given in
such manner and subject to such conditions as the Court may
specify and in particular that the evidence shall be given,
(a)
by
affidavit,
(b)
by
statement on oath or affirmation of information and belief,
(c)
by the
production of documents or of entries in books or of copies
thereof,
(d)
where a
fact is a matter of common knowledge, either generally or in a
particular place, by the production of a newspaper which contains
a statement of that fact.
119.
...
(2) In
exercising its discretion to direct an examination under
subsection (1), the Court shall take into account,
(a)
the convenience of the person whom the party seeks to
examine,
(b)
the possibility that the person will be unavailable to testify at
the hearing by reason of death, infirmity or sickness,
(c)
the possibility that the person will be beyond the jurisdiction
of the Court at the time of the hearing,
(d)
the expense of bringing the person to the hearing,
(e)
whether the witness ought to give evidence in person at the
hearing, and
(f)
any
other relevant consideration.
[7]
These rules he suggested must be read in light of Rule 4 which
reads:
4.(1) These rules
shall be liberally construed to secure the just, most expeditious
and least expensive determination of every proceeding on its
merits.
(2) Where
matters are not provided for in these rules, the practice shall
be determined by the Court, either on a motion for directions or
after the event if no such motion has been made.
[8]
Finally, though not raised specifically by Appellant's
counsel, it is appropriate to produce Rule 9:
9.
The Court may, only where and as necessary in the interests of
justice, dispense with compliance with any rule at any time.
[9]
Mr. Miller's argument was that interests of justice would be
served by the granting of the application because:
(1)
The amount of tax in issue was less than the cost of the
attendance of all the witnesses;
(2)
Even if the witnesses were prepared to travel to Regina the
Appellant could not afford to provide conduct money;
(3)
The evidence the out of jurisdiction witnesses would offer would
be uncomplicated and examination would be brief;
(4)
The testimony would not involve any documents; and
(5)
The evidence of all six witnesses was relevant in establishing
both the context for the exodus of assets from Guyana as well as
specific dealings of the Appellant in the removal of funds from
Guyana.
[10] The
Appellant's counsel also referred me to the case of Regina
v. Dix, [1998] A.J. No. 486 acknowledging that the issues of
necessity and reliability were the key elements for me to
consider. As stated in that case:
Even if the videoconference procedure is a form of commission
evidence procedure, courts have moved beyond strict adherence to
evidentiary categories and restrictions. In my view, the issues
raised by this application are issues of necessity and
reliability of the evidence. Different forms of
out-of-court statements have been admitted into
evidence even in the absence of cross-examination where the
evidence met the requirements of necessity and reliability. The
necessity requirement can be met when evidence of the same value
or quality cannot otherwise be obtained. The requirement of
reliability can be met be a circumstantial guarantee of
trustworthiness.
[11] The
necessity of the affidavit or telephone evidence is, according to
the Appellant, because the costs of any other form of providing
testimony is prohibitive. He also suggested that safeguards can
be implemented to ensure reliability of evidence provided by
telephone; for example, by the administration of the oath
pursuant to both Canadian and Guyanese laws. Evidence by
telephone would also provide the Respondent the opportunity to
cross-examine.
[12]
Appellant's counsel also brought to my attention Rule
284A.(1) of the Queen's Bench Rules of Saskatchewan which
provides:
The court may order that the testimony of any witness taken
viva voce by telephone or by any audio-visual method
approved by the court shall be admissible in evidence
(a)
where the parties consent, or
(b)
where it may be necessary for the purposes of justice.
[13] These
rules were interpreted in the case of Squires, Rennie and
Decter v. Fong and Olah, (1983) 24 Sask. R. 159 (Q.B.)
as follows:
...
It should be noted the rule was passed to modernize and effect
economy in court proceedings. The rule should not be emasculated
by any unduly restrictive interpretation, but it should not be
given such a liberal construction as will open the flood gates
for telephone evidence, thereby removing from all concerned the
opportunity to observe the demeanour of the witness. Middle
ground must be found to meet the objectives of the rules without
depriving the court of the advantages, unnecessarily, of seeing
the witness.
Crown's Argument
[14] The Crown
reviewed the scope of the proposed testimony of each of the
witnesses and expressed concerns as to the relevance of their
testimony. Specifically for the two Ontario residents, Reid and
Pearce, their testimony was to relate to a period in the
seventies when they lived in Guyana. Further, it was intended to
enlighten the Court on the political climate in Guyana at the
time and the corresponding migration of Guyanese residents. This,
the Crown contended, appeared more in the nature of opinion
evidence, and relying on the case of Kapell v. Abel,
[1996] S.J. No. 573 was not the sort of evidence appropriate for
delivery by telephone. Justice Geatros had this to say in
Kapell:
In the present case, there are factors such as those that
confronted Halvorson J. which weigh against the granting of the
order sought. In particular, it is expert testimony proposed to
be elicited over the telephone; it is apparent that both
examination and cross-examination will be lengthy and there
is prejudice the defendant would likely encounter by reason of
the difficulty in showing documents or exhibits to the witness
during cross-examination. ...
[15] The Crown
further suggested this is not the type of evidence that would be
subject to cursory cross-examination but he anticipated that the
cross-examination by the Crown would be lengthy.
[16] With
respect to the Guyanese witnesses, the Crown acknowledged that
only Mr. Sripal's evidence appeared to be directly relevant;
the other Guyanese witnesses would not be able to provide any
evidence of movement of assets nor any documentary evidence of
ownership of assets.
[17] Regarding
the two key elements of reliability and necessity, the Crown
argued that the Appellant had not shown either of these
considerations were adequately met. With respect to reliability,
no evidence was tendered regarding Guyanese laws as to the
administration of an oath and possible ensuing enforcement
procedures. He referred to the Dix case in which such
evidence was provided in relation to the jurisdiction of New
York. The Dix case dealt with videoconferencing and
indicated:
In this case, reliability is safeguarded by the technological
sophistication of the videoconference facility which allows the
witness to be seen and questioned in a live broadcast and by the
use of an oath recognized and enforceable in the jurisdiction in
which the witness will be situated when she gives her evidence as
well as by the use of the oath recognized by this Court. It is
the very essence of the oath that it binds the witness's
conscience, even in the absence of temporal sanctions.
[18] With
respect to necessity the Crown first challenged the issue of
affordability, referring to the Appellant's evidence at
discovery that he travelled to Guyana yearly. The Appellant later
suggested he only went yearly until 1990 but admitted having
visited again with his wife in 1995, which included a trip to
Barbados. The Crown went on to argue that even if the Appellant
legitimately could not afford to bring the witnesses to Regina,
cost and convenience were not sufficient reasons to allow
alternative methods of providing testimony. He cited
Lefebvre v. Kitteringham, 37 Sask. R. 155 (Sask.
Q.B.) at p. 156: as follows:
Inconvenience to witnesses is an unfortunate but inevitable
adjunct of litigation and ought not, by itself, stand as a reason
for taking evidence by telephone. The expense of bringing the
witnesses to trial can be fully compensated by an order for costs
if the trial judge is of the opinion that their personal
attendance was unnecessary and that the opposite party
unjustifiably refused to concur in an order permitting the taking
of testimony by telephone.
Analysis
[19] Although
I have been unable to find any precedent in this Court for the
use of teleconferencing as an acceptable form of receiving
evidence, I have been similarly unable to find any rule or
precedent that precludes me from exercising my discretion in
permitting such an alternative means. The Crown certainly did not
suggest I did not have authority to make such an Order. Rule 9
invites me to do just that only, "as necessary in the
interests of justice". I am also most mindful of one of the
Court's primary objectives, embedded in Rule 4. This Court is
frequented on a regular basis by taxpayers who believe they have
overpaid their fair share of taxes, and in rectifying that
situation they dig deeper into their pockets to confront the vast
machinery of bureaucracy. This costly undertaking culminates for
many with an appearance in Tax Court. Unlike many other
procedures in other Courts, the Appellant is put to the proof of
his claim, while the Crown relies on assumptions. Put in common
vernacular, many Appellants express an attitude of the cards
being stacked against them. In issues of money, which is
basically what the Court addresses, economics too often work
against the taxpayer. It is easy therefore to appreciate why the
Tax Court sets out at the very outset of its Rules a clear
sentiment to allay, as best we can, a taxpayer's three major
concerns: timeliness, costliness and justice. Of the three the
last is by far the most important.
[20] It is a
balancing act between the latter two, costliness and justice,
which is the issue before me with this application. The Appellant
is a retired convenience store operator in Regina, who immigrated
to Canada 23 years ago. He is faced with a tax bite of
approximately $7,500 to $10,000 arising from the Crown's
assumption there was no migration of $30,000 in funds from
Guyana. He has six witnesses, four from Guyana and two from
Ontario whom he believes will assist in proving his position. I
am satisfied that the costs for attendance of all these witnesses
would far exceed the tax involved.
[21] The
principles I must apply in finding the right balance to ensure
the interests of justice are served were well enunciated by
counsel. I must find the proposed testimony is relevant, it is
necessary that it be given other than by personal attendance and
in so doing it must still be reliable.
[22] Turning
first to the Ontario witnesses, I am satisfied that while their
contact with the Appellant goes back many years, it was in those
years the seeds of discontent were being sown in Guyana with the
resulting migration of people and funds. I accept the
Appellant's position that they could set a context which
would assist the Court in understanding what steps the Appellant
took. I believe it is relevant.
[23] Is it
necessary that these witnesses, who I understand live in the
Toronto area, provide evidence by affidavit or telephone, as
there is no better way of receiving such testimony? There are two
preferred methods available to these witnesses; firstly, personal
attendance, and secondly, videoconferencing. Given that the
nature of their testimony as opinion evidence could involve
extensive cross-examination, I do not find it is suitable for the
type of questioning for which teleconferencing or affidavit
evidence might be used. As Justice Halvorson enunciated in
the Squires case in identifying factors weighing against
granting an Order for teleconference evidence:
... it is expert testimony which is proposed to be
elicited over the telephone; examination and cross-examination
would be lengthy, perhaps several hours; according to defence
counsel, credibility of the appraiser is an issue; possible
prejudice to the defendants because of the difficulty in showing
documents or other exhibits to the witness during
cross-examination; and the disadvantage to the court in not being
able to observe the witness as he testifies.
[24] With
respect to these witnesses I cannot find the costs and
convenience factors significantly override the advantage from
observing these witnesses in what could be lengthy testimony.
Videoconferencing would however afford the Court this ability.
Given these witnesses are within an easy car drive of Toronto
(however easy any drive is in the Toronto area),
videoconferencing may be a less expensive option. There is no
question of reliability given the jurisdiction and nature of
facilities available in both Toronto and Regina. While I would
allow videoconferencing, this does not preclude the Appellant
from still bringing one or both of these witnesses to Regina.
Obviously he will have to weigh the respective costs, and may
indeed find that domestic air flights are cheaper for at least
one of the witnesses than 2 or 3 hours worth of
videoconferencing.
[25] I turn
now to the Guyanese witnesses, and specifically the group of
Aubrey Denobrega (the Appellant's accountant in Guyana),
Ramesh Maraj (a businessman in Guyana) and Watson
Bowling (a regional director of National Insurance Scheme in
Guyana). The Appellant indicated they would testify as to the
business and property which the Appellant owned. The Appellant
also admitted that such witnesses had no supporting documents in
relation to such business and property. As the Appellant left in
1978, their knowledge of the Appellant's assets would
understandably be somewhat stale. The Appellant's objective
is to satisfy the Court that he moved $30,000 from Guyana to
Canada in 1994 and 1995. There is no suggestion that these
witnesses have any involvement or knowledge in that regard. The
most they can add is that back in the seventies the Appellant
owned some assets, not that he disposed of them, when he disposed
of them, how much he received or what documentation was involved.
I am not prepared to grant the extraordinary measure of testimony
by telephone or affidavit for evidence which I am not satisfied
is highly relevant.
[26] Finally,
to the witness Rayman Sripal. As indicated earlier, Mr. Sripal is
presented as a witness to give evidence both to the political,
economic and racial situation in Guyana as well as providing
first hand knowledge of holding and delivering funds to the
Appellant in 1994 and 1995. The latter testimony is highly
relevant to the Appellant's case. It also is not subject to
extensive scrutiny by cross-examination or to any submission of
documents. This is precisely the sort of evidence which can be
considered for teleconferencing if the issues of necessity and
reliability are met.
[27] Can Mr.
Sripal provide evidence personally or by videoconference? I
received no evidence of Mr. Sripal's ability or willingness
to travel to Regina, nor any evidence of videoconferencing
facilities in Guyana. The reason for non-appearance is cost
and convenience, but that, in the circumstances, is a significant
reason. To insist that Mr. Ramnarine incur $3,000 plus to bring
this witness to Canada for a brief appearance to assist in
demolishing the Crown's assumptions that he did not transfer
assets to Canada from Guyana, is too onerous a burden to put upon
this Appellant. This is not an expert witness, there will not be
lengthy examination and there will be no necessity for reference
to documents. What the Court sacrifices is observing
Mr. Sripal's demeanour. While many might contend such
observation is critical to the determination of credibility, it
is my belief that what the witness says, rather than how he says
it, is more pertinent in assessing credibility.[1] This is especially so if the
nature of the testimony does not call for lengthy
cross-examination.
[28] The final
concern to address in allowing Mr. Sripal's testimony by
telephone is that of reliability. While there was some
implication from the Crown that a third world country such as
Guyana might not have a legal system in which we could place much
confidence as to the administration of oaths and enforcement of
same, this was not pursued forcibly. I dismiss any such notion.
It is imperative that a witness providing evidence in a
jurisdiction other than Canada do so under oath in accordance
with our laws, as well as in accordance with the local laws. It
must be clear to the witness that he cannot escape responsibility
for his actions should he have any thought that helping his
friend, the Appellant, requires some shading of the truth. I
believe this can best be accomplished by a member of the Guyana
legal system, either judge or lawyer, explaining the consequences
of perjury to the witness prior to administering an oath.
[29] There are
instances where the interests of justice can best be served in
the Tax Court by a practical approach to the implementation of
rules. This is one of those instances. This granting of an Order
for evidence by teleconferencing is not intended to open any
floodgates. It is limited to the circumstances of this particular
appeal and specifically the following factors:
(1)
The appeal is in regard to what has been described as the blunt
instrument of a net worth assessment;
(2)
The cost is substantial in connection with the tax in issue;
(3)
The Appellant's financial resources are prima facia
limited;
(4)
The witness is outside North America;
(5)
The witness is not an expert;
(6)
The witness will not rely on any documentary evidence;
(7)
The testimony is limited in scope and is anticipated to be brief
in duration; and
(8)
The witness must testify in the presence of a judge or lawyer of
the foreign jurisdiction under oath in that jurisdiction.
[30] It
remains to the trial judge to weigh the evidence proffered by way
of teleconferencing. For the above reasons I grant the Order set
forth at the outset.
Signed at Ottawa, Canada this 5th day of November,
2001.
"Campbell J. Miller"
J.T.C.C.
COURT FILE
NO.:
1999-3815(IT)G
STYLE OF
CAUSE:
Daniel Ramnarine v. The Queen
PLACE OF
MOTION:
Ottawa, Ontario
DATE OF
MOTION:
October 31, 2001
REASONS FOR ORDER
BY:
The Honourable Judge Campbell J. Miller
DATE OF
ORDER:
November 5th, 2001
PARTICIPANTS:
Counsel for the
Appellant:
Ronald L. Miller
Counsel for the
Respondent:
Jeff Pniowsky
COUNSEL OF RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
1999-3815(IT)G
BETWEEN:
DANIEL RAMNARINE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard by telephone conference call on
October 31, 2001
by the Honourable Judge Campbell J. Miller
Participants
Counsel for the
Appellant:
Ronald L. Miller
Counsel for the
Respondent:
Jeff Pniowsky
ORDER
Upon a motion made by counsel for the Appellant;
And upon hearing counsel for the parties,
IT IS ORDERED THAT:
(1) The witnesses Ronald Reid and
Gordon Pearce may provide their testimony at trial by
videoconferencing from Toronto, or from such other location in
Canada as agreed by the parties.
(2) The witness Rayman Sripal may
provide his testimony at trial by teleconferencing subject to the
following conditions:
(i) Questions on examination and
cross-examination shall be limited to the arrangement by which
Mr. Sripal held foreign currency for the Appellant, and the
delivery of the same to the Appellant in 1994 and 1995;
(ii) Mr. Sripal shall be present
in the offices of a judge or lawyer in Guyana, as chosen by the
Respondent, qualified as such pursuant to the laws of Guyana;
(iii) No documents shall be entered as
exhibits through Mr. Sripal's testimony;
(iv) Mr. Sripal shall be sworn in, in
accordance with the laws of Canada and in accordance with the
laws of Guyana; and
(v) The judge or lawyer in Guyana
before whom Mr. Sripal is to appear, and prior to Mr.
Sripal's testimony, shall confirm to the Court at trial the
nature of the enforcement proceedings for breach of a duly
administered oath under Guyanese law and also that he or she is
satisfied Mr. Sripal has properly identified himself as Rayman
Sripal.
(3) Costs of this application shall be
costs in the cause.
(4) The testimony of all the other
Appellant's witnesses shall be given in person at trial.
Signed at Ottawa, Canada this 5th day of November,
2001.
J.T.C.C.
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