[OFFICIAL ENGLISH TRANSLATION]
Date: 20010706
Docket: 2001-397(EI)
BETWEEN:
RHITA EL ANSARI,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR ORDER
Lamarre Proulx, J.T.C.C.
[1] This is a motion by the
respondent: (1) to have the subpoenas that the appellant sent the
ministers of National Revenue, Justice, Foreign Affairs and Human
Resources Development quashed; (2) seeking leave to examine the
appellant for discovery on or before August 31, 2001, with action
to be taken on or before September 30, 2001, on any
undertakings that may be given by the appellant during that
examination; and (3) to have the hearing of this appeal, which
had been set for June 11, 2001, adjourned
accordingly.
[2] After hearing the parties, the
Court decided from the bench to adjourn the hearing of this
appeal to a date that is convenient for the Court and the
parties, possibly in the fall of 2001.
[3] The decision being appealed is
dated January 18, 2001, and is signed by Michel Boutin. It
was prepared by Robert Leprohon. It reads as follows:
[TRANSLATION]
. . .
This letter concerns the request made by
Rhita El Ansari to know whether she was an insured
person, for employment insurance purposes, while she was employed
by the embassy of the Kingdom of Morocco from September 1, 1997,
to June 30, 2000.
It has been determined that Rhita El Ansari's employment
was not insurable employment during the period at issue pursuant
to paragraph 5(2)(d) of the Employment Insurance
Act.
[4] To understand the motion, I
consider it helpful to include the facts relied on by the
Minister of National Revenue ("the Minister") when he
made his decision as well as the appellant's grounds of
appeal.
[5] Paragraph 5 of the Reply to the
Notice of Appeal reads as follows:
[TRANSLATION]
(a) the appellant
has been a landed immigrant since
December 17, 1991;
(b) the appellant
began working for the payer on September 1, 1993;
(c) during the
period at issue, the appellant worked as a secretary for the
payer's embassy in Ottawa;
(d) the appellant
worked under a contract of service; and
(e) there is no
agreement between Morocco and Canada concerning the eligibility
of the payer's employees working in Canada for employment
insurance.
[6] The appellant's grounds of
appeal are as follows:
[TRANSLATION]
I therefore make the following arguments:
(A) by not requiring
countries that have signed the said Convention [Vienna
Convention] to comply with it as part of international law and
part of Canadian law, the Canadian government-while showing a
lack of respect for its own legislation vis-à-vis foreign
countries-is wrongly and unlawfully making its workers suffer the
consequences of the wrongdoing (violation of Canadian and
international laws) by the employer at fault;
(B) as a result of that
negligence or carelessness by the government, first, that class
of employers is given preferential treatment over the class of
Canadian employers in our own country, Canada, and the latter
class is therefore being discriminated against;
and
(C) second, the employees
of those foreign governments are treated in a
discriminatory manner compared with employees of Canadian
employers.
Therefore: Double discrimination.
In so doing, I argue:
the Canadian government, by including s. 5(2)(d) in the
Employment Insurance Act, even though it is presumed to
know the above-mentioned provisions of its legislation on
diplomatic privileges and even though it is required by the
Canadian Charter of Rights and Freedoms to protect the
rights of its nationals, is knowingly violating section 15 of the
Charter.
[7] The provisions that support the
respondent's decision that is under appeal are as follows.
Subsection 5(1) of the Employment Insurance Act ("the
Act") defines the concept of "insurable
employment" in the following manner:
5. (1) Subject to subsection (2), insurable employment is
(a)
employment in Canada by one or more employers, under any express
or implied contract of service or apprenticeship, written or
oral, whether the earnings of the employed person are received
from the employer or some other person and whether the earnings
are calculated by time or by the piece, or partly by time and
partly by the piece, or otherwise;
Subsection 5(2) of the Act provides for exclusions,
including:
5. (2) Insurable employment does not include
...
(d)
employment in Canada by the government of a country other than
Canada or of any political subdivision of the other country;
However, under paragraph 5(4)(e), such employment may
be included in insurable employment by regulation:
5(4) The Commission may, with
the approval of the Governor in Council, make regulations for
including in insurable employment
...
(e)
employment in Canada by the government of a country other than
Canada or of any political subdivision of the other country if
the employing government consents;
[8] Section 3 of the Employment
Insurance Regulations ("the Regulations")
states the following in this regard:
3(1) Employment in Canada by the
government of a country other than Canada or of any political
subdivision of that other country, or by an international
organization, that would, except for paragraphs 5(2)(d)
and (e) of the Act, be insurable employment, may be
included in insurable employment if the employing government or
the international organization, as the case may be, consents in
writing to its inclusion.
(2) Where a consent
has been given pursuant to the Unemployment Insurance
Regulations, as they read immediately before June 30, 1996,
and has not been revoked, it shall be considered to be a consent
referred to in subsection (1).
[9] Paragraph 5(2)(d) of the
Act provides that insurable employment does not include
employment in Canada by the government of a country other than
Canada. However, paragraph 5(4)(e) of the Act
authorizes the Canada Employment Insurance Commission ("the
Commission") to make regulations for including such
employment in insurable employment if the employing government
consents. The Commission exercised that regulatory power in a
general way by making section 3 of the Regulations.
For that section to be applicable, however, the employing
government must have consented in writing to the insurability of
its employee's employment.
[10] No such consent has been signed by
Morocco.
The subpoenas
[11] Rule 24 of the Tax Court of Canada
Rules of Procedure respecting the Employment Insurance Act
reads in part as follows:
24(1) A party who requires the attendance of
a person as a witness at a hearing may serve the person with a
subpoena requiring the person to attend the hearing at the time
and place stated in the subpoena and the subpoena may also
require the person to produce at the hearing the documents or
other things in the person's possession, control or power
relating to the matters in question in the appeal that are
specified in the subpoena.
...
24(3) A subpoena shall be served on a
witness personally and, at the same time, witness fees and
expenses in accordance with subsection (4) shall be paid or
tendered to the witness.
...
[12] The subpoenas were filed with the
motion. The reasons for which the quashing of the subpoenas
against the said ministers is sought are as follows: (1) the
ministers have no personal knowledge of the facts; and
(2) according to the subpoenas, the reason their attendance
is required is to [translation] "Answer questions about
section 5(2) of the Unemployment Act, which is unconstitutional,
and bill 11 on privileges and immunities".
[13] With regard to the first point, the
motion also states:
[TRANSLATION]
. . .
6. None of the
four ministers referred to above is personally aware of the facts
relating to the insurability or uninsurability of
Rhita El Ansari's employment at the embassy of the
Kingdom of Morocco from September 1, 1997, to June 30, 2000.
7. The
Minister of Justice, the Minister of Foreign Affairs and the
Minister of Human Resources Development are not authorized by the
Employment Insurance Act to decide whether employment is
insurable and have never had to review Rhita El Ansari's file
for that purpose.
8. The power
conferred on the Minister of National Revenue by section 93 of
the Employment Insurance Act to determine whether
employment is insurable is, in the regions, officially delegated
to the chiefs of appeals or the team leaders from the Appeals
Division of the Canada Customs and Revenue Agency. The relevant
extracts from the Minister's instrument of delegation are
attached jointly to this affidavit as Exhibit B.
[14] The documents signed by the Minister of
National Revenue delegating powers and duties were filed with the
motion. They show which officials are entitled to exercise the
powers and duties conferred on the Minister of National
Revenue.
[15] As regards the officials who have
knowledge of the facts that led to the decision under appeal,
counsel for the respondent referred to the affidavit of
Michel Boutin, Team Leader, Appeals Division,
Montréal Tax Services Office, Canada Customs and Revenue
Agency ("CCRA"). He has the Minister of National
Revenue's delegated power. According to him, the file was
assigned to Robert Leprohon. Counsel for the respondent therefore
stated that those two individuals have personal knowledge of the
facts and may be summoned.
[16] As regards the second reason for the
application to quash the subpoenas, counsel for the respondent
argued that the ministers were summoned to answer questions of
law and that a witness can testify only about facts and not about
law.
[17] Counsel for the respondent referred to
this Court's decision in Bâtiment Fafard
International Inc. v. The Queen, 99 DTC 1206, especially
paragraphs 35-36:
[35] This Court's rules do
not have anything specific to say about the summoning of
witnesses. The provincial rules of civil procedure must therefore
be referred to. Article 295 of the Code of Civil Procedure
provides that any person competent to testify may be compelled to
do so. The same article indicates that all persons are competent
to testify if they are in a fit state to report the facts of
which they have knowledge. It would seem that such knowledge must
be personal. Professor Léo Ducharme has written the
following:
[TRANSLATION]
While in theory any person competent to testify may be compelled
to do so, in practice the only persons who may be compelled to
testify are those who have personal knowledge of the facts
involved in the case and who are subject to the jurisdiction of
our courts. [L. Ducharme, L'administration de la
preuve, 2nd ed., Montréal, Wilson and Lafleur, 1995,
at page 37.]
With regard to the summoning of a Minister, Professor Ducharme
stated the following at the same page:
[TRANSLATION]
Moreover, the reason section 69 of the Act respecting the
Ministère du Revenu states that the Minister, the
Deputy Minister and assistant deputy ministers are not
compellable in proceedings to which the Deputy Minister is a
party is that those individuals are normally not able to give
useful testimony since they have no personal knowledge of the
facts in issue. That is why the same section provides that those
individuals must, upon the written application of a party served
at least 30 days before the date of hearing and specifying the
facts requiring testimony, designate a public servant who is
aware of the facts to testify.
[36] Although there is no
similar provision in the Income Tax Act, it is well
settled that a Minister cannot be summoned unless he or she has
personal knowledge of the facts. In Létourneau v.
Powers et al., [1975] C.A. 458, the appellant had served a
subpoena on the Minister of Justice and the Solicitor General of
Canada. The Quebec Court of Appeal upheld the trial judge's
decision quashing the subpoena. Rinfret, J.A. stated the
following at page 459:
[TRANSLATION]
Neither the testimony of the Solicitor General of Canada nor that
of the Minister of Justice of Quebec can help the Court judge
these acts, since they were not present; the reports they might
file are not in themselves proof of their content; to have any
probative value, they would have to come from the persons
concerned, who are already before the Court and can be
questioned.
[18] Counsel for the respondent also
referred to the Quebec Court of Appeal's decision in
Létourneau v. Powers et al., [1975] C.A. 458, at
page 459:
[TRANSLATION]
The joint record contains the parties' submissions. In
short, counsel for each minister objected to the subpoenas
because proceedings were brought against the defendants
personally, because the two witnesses were not personally aware
of what had happened in 1965 and because the documents they were
asked to bring were not relevant to the action based on trespass
and threats.
. . .
. . . Thus, I do not see how the testimony of the Solicitor
General of Canada and the Minister of Justice of Quebec could
help the Court render justice to the plaintiff in accordance with
the pleadings in the plaintiff's action and within the limits
of the plaintiff's allegations. I therefore quash the two
subpoenas.
When the hearing was held, besides the fact that the joint
record-the filing of which was the appellant's
responsibility-was incomplete, I concluded that the
above-mentioned objections by counsel and the judgment allowing
them were well-founded; it seemed to me above all that the
defendants were being blamed for specific acts, that they denied
having committed those acts and that they were alleging other
specific facts as justification for their conduct; the evidence
had to be directed at those acts and those facts to remain
relevant. I therefore felt that the appeal should be dismissed
with costs.
[19] The appellant's agent, who is also
her spouse, argued that the ministers in question are all aware
of this case because they received letters by registered mail
explaining the situation to them. He filed the letters mailed to
the ministers and certain members of the Moroccan government as
Exhibit A-1.
[20] The appellant's agent filed the
Convention on Social Security between Canada and Morocco signed
on July 1, 1998, as Exhibit A-2. At first glance, that
agreement does not seem to include the Employment Insurance
Act. The appellant's agent filed an agreement on social
security between Morocco and Quebec dated May 25, 2000, as
Exhibit A-3. The comment on Exhibit A-2 applies
to that agreement as well. Exhibit A-4 is made up of the
appellant's petitions to the United Nations Commission on
Human Rights concerning her employment by the Moroccan embassy in
Canada. Exhibit A-5 is a certificate from the said embassy
to which the appellant's résumé is attached.
Exhibit A-6 is a letter from the appellant to the
CCRA's insurability officer, A. Chartrand, in response to
Ms. Chartrand's decision of November 10, 2000.
Examination for discovery
[21] Section 18 of the Rules deals
with examination for discovery:
18(1) After the time limited for replying
under section 12 has expired the Court may, on application by any
party to an appeal, direct
(a) any other party to the appeal to make discovery on
oath of the documents that
are or have been in the possession of or under the control of
that other party relating to any matter in question on the
appeal,
(b) that the applicant is authorized to examine
on oath, for the purposes of discovery, any other party to the
appeal, or
(c) that there
shall be both discovery of documents and
examination for discovery.
(2) The Court may specify the
form of affidavit to be used for the purpose of discovery of
documents.
(3) The person to be
examined for discovery shall be
(a) if the other
party is an individual, that individual,
...
(c) if the other party is the
Minister, any departmental or other officer of the Crown
nominated by the Deputy Attorney General of Canada,
...
(e) a person who has
been agreed upon by the examining party and the party to be
examined with the consent of such person.
(4) The Court may designate
the person before whom the examination for discovery is to be
conducted and direct the manner in which it shall be
conducted.
(5) All evidence given at an
examination for discovery shall be recorded by a court reporter
appointed by the Registrar for that purpose.
(6) Any party may, at the
hearing of an appeal, use in evidence against another party any
part of the examination for discovery of that other party, but,
on the application of an adverse party, the Court may direct that
any other part of the examination, that in the opinion of the
Court, is so connected with the part to be used that the
last-mentioned part ought not to be used without such other part,
be put in evidence by the party seeking to use such
examinations.
[22] On the basis of the complexity of the
appellant's Notice of Appeal, as can be seen on its face, the
respondent applied under paragraph 18(1)(b) of the
Rules to conduct an examination for discovery on or before
August 31, 2001. Counsel for the respondent explained that the
appellant and her agent referred to numerous events and raised
several points of law and that such an examination for discovery
would be helpful to properly understand the appellant's
arguments and legal situation. In this regard, she referred to
the decision by the Federal Court-Trial Division in Champion
Truck Bodies Limited v. The Queen, [1986] 3 F.C. 245,
especially at page 247:
... The object is to explore fully the issues raised by
the pleadings, to understand the position of the party being
examined and to gain admissions from him. This is all in
furtherance of the goal of narrowing the issues and reducing as
much as possible matters to be determined at trial....
Conclusion
[23] The respondent applied to have the
Court quash the subpoenas sent by the appellant, arguing, with
supporting affidavits and case law: (1) that the persons summoned
have no personal knowledge of the facts in issue; (2) that the
wording of the subpoenas indicates that the ministers were
summoned to answer questions of law, on which a witness of fact
cannot be examined; (3) that it is pointless, unreasonable and
irrelevant in the circumstances to require the appearance of the
four ministers summoned; and (4) that the most appropriate person
to testify on the facts is the appeal officer who reviewed the
appellant's file.
[24] I cannot add much to what was argued by
counsel for the respondent. The ministers summoned by the
appellant have no personal knowledge of the facts that led to the
decision under appeal. It is not up to them to come and testify.
As for the challenge to the constitutionality of the provisions
at issue, it is not the ministers who must respond to it but
rather counsel for the respondent minister.
[25] The motion is granted. The subpoenas
against the ministers are quashed. The respondent is entitled to
conduct an examination for discovery on or before August 31,
2001. The undertakings resulting from the examination for
discovery will have to be fulfilled on or before September 30,
2001.
[26] The Court will contact the parties to
determine an appropriate hearing date.
Signed at Ottawa, Canada, this 6th day of July 2001.
J.T.C.C.
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