Date: 20001024
Docket: 2000-523-EI, 2000-525-CPP
BETWEEN:
BUDGET PROPANE CORPORATION,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
and
MORLEY RAYMER,
Intervenor.
____________________________________________________________________
Counsel for the Appellant: Samantha L. Callow
Counsel for the Respondent: Scott Simser and Sherry
Darvish
For the Intervenor: The Intervenor himself
____________________________________________________________________
Reasons for Order
(Delivered orally from the Bench at Toronto, Ontario, on
October 6, 2000)
McArthur J.T.C.C.
[1] A
motion was presented by counsel for the Appellant for an order
that the Intervenor, Morley Raymer, produce copies of all income
tax returns from Revenue Canada for himself personally and for MR
Enterprises for the relevant periods being 1996, 1997, 1998 and
1999 taxation years, at reasonable photocopy cost to the
solicitor for the Appellant.
[2]
The Appellant is appealing a decision of the Minister of National
Revenue ruling that Morley Raymer, owner and operator of MR
Enterprises, was an employee, rather than a contractor, for the
purposes of pensionable employment and employment insurance while
engaged with Budget Propane Corporation for the period October
21, 1996 to August 31, 1998 in accordance with the Canada
Pension Plan and the Employment Insurance Act.
[3]
Counsel for the Appellant submits that one of the relevant
considerations in determining whether Mr. Raymer was under a
contract for service or contract of service will be to consider
the risk of loss of MR Enterprises and all of the circumstances
involving his business, MR Enterprises. As such, the income tax
returns of MR Enterprises of Morley Raymer are necessary for the
proper determination of this appeal and are therefore
relevant.
[4]
The Intervenor was present at the hearing and made no
representations. Through counsel for the Minister,
Mr. Raymer turned down a suggestion by me that the specific
information requested by the Appellant be turned over without
anything further by editing the returns perhaps through blocking
out the unrelated information. Counsel for the Minister stated
that the Minister did not oppose the motion but, understandably,
pursuant to section 241 of theIncome Tax Act, would not
release the Intervenor's tax returns. My reasons for denying
the motion are two-fold:
(a)
there is a strong public interest in keeping a taxpayer's
returns from production. Subsection 241(4) of the Income Tax
Act balances the privacy interest of the taxpayer with
respect to financial information and the interest of the Minister
of National Revenue in being allowed to disclose taxpayer
information to the extent necessary for effective administration
of the Income Tax Act, the Employment Insurance Act
and Canada Pension Plan. The Appellant has not satisfied
me that the need to have the income tax returns produced at this
time outweighs the public interest in keeping them from
production. There is no evidence that the Minister's
assumptions have been based in any way, on the income tax returns
of Morley Raymer.
(b)
Subsection 18(1) of the Tax Court Rules of Procedure
concerning the Employment Insurance Act provides that a
Court may, on application by a party, direct any other party to
the appeal to make discovery of documents, and
paragraph 18(1)(c) provides that there shall be
discovery of documents and examination for discovery.
[5]
This leaves the question of whether Morley Raymer is a party to
the appeal? I think not. He has been invited to provide
information in the appeal pursuant to subsection 93(1) of the
Employment Insurance Act. The Intervenor is not a party to
the action and has no carriage of the proceedings. There are
other procedures to permit the Appellant to examine
Mr. Raymer at the hearing, together with his documents which
include, of course, a subpoena duces tecum. The motion is
dismissed with costs in the cause.
Signed at Ottawa, Canada, this 24th day of October, 2000.
"C.H. McArthur"
J.T.C.C.
COURT FILE
NO.:
2000-523(EI) and 2000-525(CPP)
STYLE OF
CAUSE:
Budget Propane Corporation
and Her Majesty the Queen and
Morley Raymer, Intervenor
PLACE OF
HEARING:
Toronto, Ontario
DATE OF
HEARING:
October 3 and 6, 2000
REASONS FOR JUDGMENT BY: The
Honourable Judge C.H. McArthur
DATE OF
JUDGMENT:
October 16, 2000
APPEARANCES:
Counsel for the Appellant: Samantha L. Callow
Counsel for the
Respondent:
Scott Simser and Sherry Darvish
For the
Intervenor:
Morley Raymer
COUNSEL OF RECORD:
For the
Appellant:
Name:
Samantha L. Callow
Firm:
Bell, Temple
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
Email this Content