DATE: 20050414
Docket: T-2048-01
Citation: 2005 FC 507
Ottawa, Ontario, this 14th day of April, 2005
Present: THE HONOURABLE JUSTICE KONRAD von FINCKENSTEIN
BETWEEN:
SELLADURAI PREMAKUMARAN and
NESAMALAR PREMAKUMARAN
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
[1] This is a motion for production of documents under Rules 242, 223 and made pursuant to Rule 369.
[2] The facts are fairly straight forward and can be found in the Defendant's written submission at paragraphs 1 to 8 which I reproduce herewith, albeit with slight conforming changes.
FACTS
1. The Plaintiffs files their Statement of Claim in this action on November 16, 2001. The Statement of Claim has been amended several times, and is now called the Third Amended Statement of Claim, served on the Defendant June 9, 2003.
2. The Third Amended Statement of Claim claims, generally and among other things, that the Plaintiffs have suffered financial losses including expenses, loss of employment opportunities and reduced income since arriving in Canada, and blames the Defendant for these losses.
3. The Plaintiffs served an Affidavit of Records on the Defendant in this action. The Affidavit of Records does not include any United Kingdom tax records or any other evidence of annual income of the Plaintiffs while they lived in the United Kingdom.
4. The Defendant requested their United Kingdom tax records for the years 1993, 1994, 1995, 1996, 1997 and 1998 (collectively the "tax records") from the Plaintiffs at discoveries on April 16, 2004 and June 22, 2004.
5. The Plaintiff, Selladurai Premakumaran agreed to produce his tax records when requested to do so at discovery and gave an undertaking to do so. On June 7, 2004, at a subsequent day of discovery, he objected to the undertaking and stated he would not produce the tax records.
6. The Plaintiff, Nesamalar Premakumaran at discovery on June 22, 2004, objected and refused to give an undertaking to produce her tax records when requested to do so.
7. The reason given by the Plaintiffs for refusing to provide the tax records was that they had already produced these records for their initial entry into Canada many years earlier and would not produce them again for this lawsuit.
8. At a Case Management meeting on January 21, 2005 the Plaintiffs were again asked to either produce their tax records or permit the Defendant to request the tax records from the United Kingdom tax authorities. The Plaintiffs again refused to produce the tax records and stated the same objection as their reason.
[3] In the Order following the Case Management conference I stated:
The Court takes note that Mr. Premakumaran refuses to comply with undertaking No. 4 which he gave on the first day of discovery and withdrew on the 2nd day. Defendant may bring this refusal to the attention of the trial judge so that the judge can draw the appropriate inference from this refusal.
[4] Unsatisfied with this observation, the Defendant now brings this motion for production arguing that the "tax records are critical evidence on the issue of whether the Plaintiffs suffered legal damage after immigrating to Canada, being direct evidence of their incomes and employment status".
[5] The Plaintiffs refuse making various submissions the gist of which is:
a) these records have already been produced in the past when they applied for landed immigrant status, but were subsequently destroyed by the Crown;
b) these documents are not relevant and the Crown is trying to manipulate the evidence to direct attention away from their central claim of negligent and fraudulent misrepresentation;
c) these documents are no longer in their possession; and
d) it is unreasonable to ask them to obtain these records from the UK authorities.
[6] This position of the Plaintiffs is not sustainable. They are bringing, in their words, an action for negligent and fraudulent misrepresentation. One of their central claims alleges that thanks to such negligent and fraudulent misrepresentation, they came to Canada and left their prosperous existence in the UK. Their income in the UK prior to emigrating is therefore clearly relevant, hence the Crown's insistence on the UK tax returns.
[7] The basic premise for production of documents is succinctly spelled out by Hargrave , P. in Cooper Industries Inc. v. Caplan Industries Inc., 80 C.P.R. (3d) 237 at para 7:
The Plaintiff's approach to production of documents overlooks the basic concept that disclosure of documents is a matter of relevance, not discretion: this is clearly required by Rule 448(2)(a) which provides that an affidavit of documents must contain various lists "... of all documents relevant to any matter in issue..." which a party possesses or has power or control over. A litigant is obliged to list every relevant document in its possession, even those documents which do not have to be produced: see for example Skoye v. Bailey, _1971_ 1W.W.R. 144 (Alta. C.A.) At 145, and Re/Max Real Estate (Edmonton) Ltd. V. Border Credit union Ltd., _1988_ 6W.W.R. 146, as well written and comprehensive decision of master Funduk of the Alberta Queen's Bench. Turning from listing to production of documents, to say a document need not be produced because the other side already has it, from another source, is an inappropriate answer: see for example Canada Southern Petroleum Ltd. V. Amoco Canada Petroleum Co., _1995_ 5 W.W.R. 720 (Alta. Q.B.) At 723.
[8] Given that the documents here are relevant, they should be produced. It is no excuse to say they are in the hands of UK authorities, they need to be obtained or proof must be produced that the UK authorities are not willing to release them. Arguing that they have been produced in separate proceedings (albeit involving a another arm of the Crown) is not an answer. They have to be produced in this action which the Plaintiffs initiated.
[9] As far as going back on an undertaking to produce, this can only be done with permission of the court. As stated in Psychologists Assn. of Alberta v. P.S. [1991] A.J. No. 38 by Cote J.A.:
Undertakings to answer later are not known, for example, in the United States. They are useful devices which we have developed in Canada. They really are requests by the witness for indulgences. He wishes not to have to answer on the spot proper questions. He wishes, if possible, to avoid the necessity of reattending. He instead undertakes to the court and to his opponent that he will voluntarily produce the information later. By doing that he avoids the expense and bother of coming back again. And he avoids the danger of being moved against for contempt for failure to answer, or for failure to inform himself beforehand, or for failure to bring along necessary information which is under his control. An undertaking to the court, particularly to avoid answering compulsory questions, is not a one-sided matter. It is not like an offer in contracts law which can be revoked. In my view there can be no such thing as unilateral revocation of an undertaking of that sort. The party can doubtless move the court to be relieved of his undertaking, for example, on showing that:
a) it was given inadvertently,
b) (with proper evidence) that it should not have been given, and
c) that the other side has not been prejudiced, or offering to repair the prejudice.
[10] Accordingly, both Plaintiffs will have to produce the UK tax returns for 1992 to 1998 inclusive.
[11] The Defendants also asked for the following order: "An order that, if the Plaintiffs refuse or fail to produce their tax records or fail to provide proof that they made their best efforts to obtain the tax records from the appropriate United Kingdom tax authorities within the time period permitted by this Court, the Plaintiffs' action shall be dismissed entirely for abuse of process, with costs against the Plaintiffs, or in the alternative stayed until such time as the Order is complied with".
[12] In my view such an order is premature. If the Plaintiffs do not produce the required tax returns in the time provided, the Defendants are free to bring a motion to that effect.
ORDER
THIS COURT ORDERS that:
1. Within 45 days from the date of the Order, the Plaintiff Selladurai Premakumaran shall produce his United Kingdom tax records (or a United Kingdom government summary of the information contained in those records if the original records are not available) for the requested years, or provide proof that he properly requested those same records from the appropriate United Kingdom tax authorities and made his best efforts to obtain said records.
2. Within 45 days from the date of the Order, the Plaintiff Nesamalar Premakumaran shall produce her United Kingdom tax records (or a United Kingdom government summary of the information contained in those records if the original records are not available) for the requested years, or provide prof that she properly requested those same records from the appropriate United Kingdom tax authorities and made her best efforts to obtain said records.
3. Costs in favour of the Defendant in the amount of $500 payable forthwith and in any event of the cause.
"Konrad von Finckenstein"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2048-01
STYLE OF CAUSE: SELLADURAI PREMAKUMARAN and
NESAMALAR PREMAKUMARAN AND
HER MAJESTY THE QUEEN
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: JANUARY 21, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Justice K.von Finckenstein
DATED: APRIL 14, 2005
APPEARANCES: (via teleconference)
SELLADURAI PREMAKUMARAN FOR THE PLAINTIFFS
NESAMALAR PREMAKUMARAN (Self-Represented)
RICK GARVIN
LAURA DUNHAM FOR THE DEFENDANTS
SOLICITORS OF RECORD:
SELLADURAI PREMAKUMARAN FOR THE PLAINTIFFS
NESAMALAR PREMAKUMARAN (Self-Represented)
Edmonton, Alberta
JOHN H. SIMS, Q.C. FOR THE DEFENDANTS
Deputy Attorney General of Canada
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