Date: 20011211
Docket: T-1695-01
Montréal, Quebec, December 11, 2001
Before: RICHARD MORNEAU, PROTHONOTARY
BETWEEN:
NORMAND MARTINEAU
Plaintiff
and
THE MINISTER OF NATIONAL REVENUE
Defendant
ORDER
The defendant's motion is allowed with costs.
The plaintiff will have to submit to an examination for discovery before January 18, 2002, at a specific date and place to be decided by counsel for the parties. The defendant will thereafter serve and file his defence on or before February 28, 2002.
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Richard Morneau
Prothonotary
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Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20011211
Docket: T-1695-01
Neutral citation: 2001 FCT 1361
BETWEEN:
NORMAND MARTINEAU
Plaintiff
and
THE MINISTER OF NATIONAL REVENUE
Defendant
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] This case concerns a motion by the defendant for an extension of time in which to file a defence until the plaintiff has been examined pursuant to Rule 236(2) of the Federal Court Rules (1998) ("the Rules"), and consequently to allow the defendant to file his defence within 30 days of the date of the examination.
[2] The plaintiff in the case at bar objected indirectly to the instant motion on the ground that he cannot be compelled to give testimony in his action.
[3] This action is the one filed by the plaintiff himself pursuant to s. 135(1) of the Customs Act, R.S.C. 1985 (2d Supp.), c. 1 ("the Act").
[4] That section reads:
| 135.(1) A person who requests a decision of the Minister under section 131 may, within ninety days after being notified of the decision, appeal the decision by way of an action to the Federal Court - Trial Division in which that person is the plaintiff and the Minister is the defendant.
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135.(1) Toute personne qui a demandé que soit rendue une décision en vertu de l'article 131 peut, dans les quatre-vingt-dix jours suivant la communication de cette décision, en appeler par voie d'action devant la Section de première instance de la Cour fédérale, à titre de demandeur, le ministre étant le défendeur.
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[5] By his action the plaintiff asked the Court to find that several provisions of the Act and the defendant's decision under s. 131 of the Act are of no force or effect as being contrary to ss. 11(d) of the Charter and 2(e) of the Canadian Bill of Rights.
[6] In the plaintiff's submission, he clearly cannot now be compelled to undergo an examination for discovery under Rule 236 since the legislative background to the defendant's decision is penal in nature and so he is entitled to the protections conferred by s. 11(c) of the Charter and ss. 2, 4 and 5 of the Canada Evidence Act, R.S.C. 1985, c. C-5.
[7] The plaintiff's position appears to the Court to be wrong.
[8] There is no question here of his having to testify in a proceeding or action brought at the instance of the defendant. The defendant followed a certain procedure and rendered a decision. For the purposes of the instant motion these facts are history: the decision has already been rendered. For the purposes of his action, I do not see how the plaintiff can seek to describe himself as a defendant charged with an offence in a criminal action.
[9] Accordingly, it appears to me that the Supreme Court's decision in R. v. Amway, [1989] 1 S.C.R. 21, is of no assistance to the plaintiff in the case at bar. On the contrary, it appears that the Supreme Court ultimately recognized in that case, at 36, that the Federal Court Rules on examinations for discovery have terminated the existence of rules prohibiting examinations for discovery.
[10] It is inconceivable in this Court for a plaintiff to argue that he does not have to undergo an examination for discovery if the opposing party desires it.
[11] The defendant's motion will accordingly be allowed with costs. So as to move the matter forward, and in accordance with Rules 3 and 53, the plaintiff will have to submit to an examination for discovery before January 18, 2002, at a specific date and place to be decided by counsel for the parties.
[12] The defendant will thereafter serve and file his defence on or before February 28, 2002.
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Richard Morneau
Prothonotary
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MONTRÉAL, QUEBEC
December 11, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
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Federal Court of Canada
Trial Division
Date: 20011211
Docket: T-1695-01
Between:
NORMAND MARTINEAU
Plaintiff
and
THE MINISTER OF NATIONAL REVENUE
Defendant
REASONS FOR ORDER
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FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: T-1695-01
STYLE OF CAUSE: NORMAND MARTINEAU
Plaintiff
and
THE MINISTER OF NATIONAL REVENUE
Defendant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 26, 2001
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
DATED: December 11, 2001
APPEARANCES:
Frédéric Hivon for the plaintiff
Jacques Savary for the defendant
SOLICITORS OF RECORD:
Lacombe, Hivon for the plaintiff
Montréal, Quebec
Morris Rosenberg for the defendant
Deputy Attorney General of Canada
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