Fabi v. Canada (Minister of National Revenue), 2004 FC 439

Date: 20040324

Docket: T-89-04

Citation: 2004 FC 439

Montreal, Quebec, March 24, 2004

Present:           RICHARD MORNEAU, PROTHONOTARY

BETWEEN:

                                                                DONALD FABI

                                                                                                                                            Applicant

                                                                           and

                                            MINISTER OF NATIONAL REVENUE

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is a motion by the applicant in connection with an application for judicial review essentially for rulings in his favour on certain objections raised by the respondent during the examination of the respondent's affiant (the examination of Mr. Phaneuf).

[2]                For the purposes of this motion, the applicant's application for judicial review concerns just two requirements to provide documents or information issued on December 15, 2003, by the respondent under the Income Tax Act, R.S.C., 1985 (5th Supp.) c. 1, as amended (the December 15, 2003 information requirements).

[3]                In the light of clarification provided by counsel for the applicant at the hearing of this motion, the applicant apparently claims that the December 15, 2003 information requirements are a form of intimidation of the applicant and his entourage as well as an abuse of process and a violation of section 8 of the Charter, basically because the information sought by the respondent on December 15, 2003, was purportedly already provided in the past in response to other information requirements.

[4]                However, in order to substantiate this point, the applicant should, in support of his main affidavit, have produced the evidence or preliminary evidence that the requested information had in fact already been provided. He failed to do that. That in itself is an initial difficulty for which the applicant is entirely responsible. During the examination of Mr. Phaneuf, the applicant could at least have attempted to bring this past information to Mr. Phaneuf's attention, and together they could then have explored the circumstances justifying the respondent's continued requirement for the specific information set out in the December 15, 2003 information requirements. That is not how the applicant went about it. By trying to get access to more or less all of Mr. Phaneuf's investigation file, the applicant went on something of a fishing expedition, hoping to find some evidence in Mr. Phaneuf's file to support his own legal arguments.

[5]                The respondent's objections seem reasonable to me based on the applicable case law on the potential scope of examination on an affidavit in a judicial review proceeding (see Merck Frosst Canada Inc. v. Canada (Minister of Health) (1997), 80 C.P.R. (3d) 550, upheld on appeal, 3 C.P.R. (4th) 286; Eli Lilly and Co. v. Novopharm Ltd. (1996), 67 C.P.R. (3d) 362; Imperial Chemical Industries Plc et al. v. Apotex Inc. (1988), 23 C.P.R. (3d) 362; Upjohn Corp. v. Minister of National Health (1987), 14 C.P.R. (3d) 50.

[6]                The analysis in Royal Bank of Scotland plc. v. Golden Trinity (The), [2000] 4 F.C. 211, is not directly applicable here because the Court was dealing with a completely distinct and special situation: the scope of cross-examination on affidavits of claim in a proceeding to determine priorities - in the context of an action - to ship sale proceeds.

[7]                For the foregoing reasons, the applicant's motion is dismissed in relation to all of the relief sought, with costs against the applicant.

[8]                The parties shall proceed with Mr. Phaneuf's examination at a time and place to be determined by consent of counsel for the parties. The examination must, however, take place by April 22, 2004. The periods provided for in rules 309 and following will apply thereafter.

Certified true translation

Peter Douglas

                                                             FEDERAL COURT

                                                     SOLICITORS OF RECORD

DOCKET:

STYLE OF CAUSE:

T-89-04

DONALD FABI

                                                                    Applicant

and

MINISTER OF NATIONAL REVENUE

                                                               Respondent

PLACE OF HEARING:MONTREAL, QUEBEC

DATE OF HEARING:MARCH 22, 2004

REASONS FOR ORDER: RICHARD MORNEAU, PROTHONOTARY

DATE OF REASONS:MARCH 24, 2004

APPEARANCES:

SOLICITORS OF RECORD: