Gregory v. The Queen, docket 1999-464-IT-G

Date: 20010124

Dockets: 1999-488-IT-G; 1999-464-IT-G; 1999-466-IT-G; 1999-467-IT-G; 1999-468-IT-G; 1999-469-IT-G; 1999-472-IT-G; 1999-473-IT-G; 1999-474-IT-G; 1999-475-IT-G; 1999-476-IT-G; 1999-478-IT-G; 1999-479-IT-G, 1999-480-IT-G, 1999-481-IT-G, 1999-482-IT-G; 1999-484-IT-G, 1999-486-IT-G, 1999-487-IT-G

BETWEEN:

JOHN N. GREGORY, DOUGLAS H. MATHEW, STEVEN M. COOK, EUGENE KAULIUS, CHARLES E. BEIL, 347059 B.C. LTD., JOHN R. OWEN, AMALIO DE COTIIS, WILLIAM JOHN MILLAR, NSFC HOLDINGS LIMITED, WARREN J.A. MITCHELL, TFTI HOLDINGS LIMITED, IAN H. PITFIELD, LORNE A. GREEN, INNOCENZO DE COTIIS, MICHAEL DE COTIIS, VERLAAN INVESTMENTS INC., FRANK MAYER, CRAIG C. STURROCK,

Appellants,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for order

Bowman, A.C.J.

[1]            These reasons will deal with four motions that were heard together, as follows:

1.              John N. Gregory v. The Queen

                In this motion the appellant John N. Gregory moves for directions under section 4 of the General Procedure Rules. Essentially the appellant moves for a trial date in April, May or June.

2.              Douglas H. Mathew v. The Queen

                In this motion the appellant Douglas H. Mathew moves for an order that his case be held in abeyance pending the final resolution of OSFC Holdings Ltd. v. The Queen, a case pending in the Federal Court of Appeal on appeal from this court and John N. Gregory v. The Queen, one of the cases pending in this court that is the subject of two motions before me.

3.              John N. Gregory v. The Queen

                In this motion the respondent asks that the appeal be held in abeyance pending the final resolution of OSFC Holdings Ltd. v. The Queen or alternatively that the appeal of John N. Gregory v. The Queen be consolidated with the appeals of the other appellants set out in the style of cause -"the SRMP appellants"-.

4.              Douglas H. Mathew v. The Queen

                The fourth motion is by the respondent for an order that the appeals of Douglas H. Mathew and the other SRMP appellants be held in abeyance pending the final resolution of OSFC Holdings Ltd. v. The Queen, or that the Mathew appeal and those of the other SRMP appellants be consolidated.

[2]            There has already been too much delay in these matters. The Federal Court of Appeal has directed that the constitutional issue raised in Gregory may not proceed unless all of the seven days of evidence on all of the other issues is heard.

[3]            I see no reason for denying Mr. Gregory his right to have that issue -which is not raised in the OSFC Holdings Ltd. case- heard expeditiously. I am therefore not prepared to stay the hearing of the Gregory appeal. The constitutional issue would not be disposed of in any event by the ultimate decision in OSFC Holdings Ltd. Mr. Chambers, having argued successfully in the Federal Court of Appeal that all the evidence on all of the other issues in Gregory must be heard before the constitutional issue can be heard, now argues that the constitutional issue in Gregory may be disposed of by the decision in OSFC Holdings Ltd., because if some court adjudicates upon section 245 it is established that the provision is capable of being interpreted and cannot therefore be void for uncertainty. In other words, the respondent has moved from one extreme in which she argues that seven days of evidence must be adduced before the narrow constitutional issue is decided, to the opposite extreme in which the constitutional issue raised in Gregory can be disposed of without a hearing at all on the basis of another case in which Mr. Gregory is not a party and in which the constitutional issue is not raised. It is sufficient to state the position and then let this forlorn notion founder on its own.

[4]            Therefore, I am not prepared to grant Mr. Chambers' motion to stay the Gregory appeal or the other appeals, nor am I prepared to accede to Mr. Cook's request that the SRMP appeals be held in abeyance pending the final disposition of both the OSFC Holdings Ltd. appeal and the Gregory appeal. A stay of proceedings is a serious matter and should only be granted for cogent reasons.

[5]            Mr. Chambers has requested as well that the SRMP appeals be consolidated with the Gregory appeal. I believe he now agrees with my view that it is generally speaking inappropriate to consolidate the income tax appeals of two or more taxpayers. The effect of consolidation is convert the appeals of more than one taxpayer into one appeal and I do not think that this can be done given the fact that under the Income Tax Act every taxpayer has a right to have his, her or its appeal dealt with separately by the court. However I agree with Mr. Chambers that the cases should be heard together. I say this for several reasons. All of the appeals deal with one transaction or group of transactions. The desirability of avoiding a multiplicity of proceedings and the possibility of inconsistent judgments far outweighs the possible inconvenience of having all of the cases heard together. Any increased expense as the result of doing so can be compensated for in the award of costs. Counsel believes that having the cases heard together will add no more than two days to the seven already projected for the Gregory case alone.

[6]            The provision of the list of documents should be completed by the end of February 2001. This should be a simple matter given that substantially the same documents have already been produced in Gregory.

[7]            Oral discoveries and any undertakings arising therefrom should be completed by the end of May 2001.

[8]            The trial of all cases is set down for hearing during the weeks of July 3 and 9, 2001, commencing on July 3, 2001 at Vancouver.

[9]            The costs of these motions are in the discretion of the trial judge.

Signed at North Bay, Canada, this 24th day of January 2001.

"D.G.H. Bowman"

A.C.J.