Date: 20000323
Docket: T-1724-99
BETWEEN:
ANGELO DEL ZOTTO
Applicant
- and -
THE MINISTER OF NATIONAL REVENUE
and JOHN EDWARD THOMPSON
Respondents
- and -
Docket: T-1755-99
BETWEEN:
HERBERT NOBLE
Applicant
- and -
THE MINISTER OF NATIONAL REVENUE
and JOHN EDWARD THOMPSON
Respondents
REASONS FOR ORDER
(delivered orally from the bench at Ottawa on March 22, 2000)
Hugessen J.
[1] These are two motions brought pursuant to Rule 3991 of the Federal Court Rules, 1998 for the reconsideration of a judgment rendered by a judge of this Division on a judicial review application which was heard and decided on December 3, 1999.
[2] The applicants are respectively the subject of and a principle witness before an inquiry being conducted pursuant to section 231.4 of the Income Tax Act. That inquiry is presently underway but its commencement was delayed for a number of years going back to 1993 by the applicants having brought proceedings in this Court attacking the constitutionality of the inquiry itself. Those proceedings and other related proceedings have been at least twice to the Federal Court of Appeal and once to the Supreme Court of Canada and were ultimately unsuccessful. In some or all of those proceedings, the applicants were represented by the firm known by the name of Osler"s who only ceased to represent them in January of 1999 at which time the present solicitors appearing for the applicants came on the file.
[3] The judge who heard and dismissed the application for judicial review on December 3, 1999, the judgment which I am today asked to reconsider, had, prior to his appointment to this Court in January 1999, been a partner in the firm of Osler"s. He had also had a very minor involvement in the applicant"s file itself in 1993 but I do not think that that has any great bearing on the matter, although others may have another view.
[4] The present motion asserts that the fact of the judge"s prior involvement with Osler"s and with the applicants in their litigation and in particular in their attack on the constitutionality of the inquiry only came to their knowledge very shortly after the judgment of December 3, 1999 and they assert that those facts give rise on their part to a reasonable apprehension of bias which renders the decision which is sought to be reviewed void.
[5] Both applicants have appealed the judgment of December 3, 1999 and those appeals are pending. Both of them, in their notices of appeal have asserted and alleged as a ground of appeal the identical facts which I have just summarized as giving rise to a reasonable apprehension of bias on the part of the judge and as therefore giving them a good ground of appeal.
[6] I have concluded that I should dismiss these motions but on procedural grounds only and I shall, for reasons which I think are obvious, refrain from expressing any view on the merit of these two motions.
[7] My decision is based upon the decision of the Court of Appeal in the case of Etienne2 ( subsequently followed by the present Chief Justice of this Court who was then a member of this Division in the case of Zeneca.) In that case, the Court of Appeal held that it was inappropriate for proceedings under the predecessor to Rule 399 to go forward simultaneously with the hearing of an appeal when the Court of Appeal was quite capable of admitting the newly discovered facts into evidence and of judging upon them under its own independent powers.
[8] It is suggested that there are two reasons why the decision in Etienne may be distinguished from the present circumstances. The first is that in Etienne, the judge to whom the application for reconsideration was made was the very same judge who had delivered the judgment which was sought to be reconsidered.3
[9] Second, it is said that in Etienne and in Zeneca, it was not asserted that there was a reasonable apprehension of bias or some other ground of nullity of the judgment that was sought to be reconsidered but simply that there was new evidence which might have varied the result.
[10] While I concede that those two differences exist, I do not think that they are material. In my view, the rationale for Etienne is clearly that it is inappropriate for the identical point to be raised between the identical parties in the identical Court file, simultaneously before two Divisions of the Court. Permitting that to happen can only give rise to confusion and is likely to draw the administration of justice into disrepute.
[11] If I may be permitted to take a hypothetical example from this case: if I were to hear this motion and decide it upon its merits, whether I were to allow it or to dismiss it, the result could only embarrass the Court of Appeal. The Court of Appeal has been or will be asked to exercise its own independent jurisdiction to admit new evidence. How is it going to deal with any fact finding process that I may have engaged in in connection with this motion? Presumably, with respect to an appeal of any judgment I render today, the Court of Appeal will owe deference to any fact finding process that I may have engaged in (and I am likely to be called upon to engage in a fact finding process in this record). On the other hand, in the exercise of its own jurisdiction to admit new evidence and to decide whether or not that should affect the outcome of the appeal, the Court of Appeal will not be so fettered. Which rule are they to follow if I decide this motion upon its merits?
[12] Additionally of course, if I were to allow the motion today, there would be a further embarrassment to the proceedings before the Court of Appeal because it would be unclear, in my view, as to which judgment they were sitting in appeal of. What would become of the presently pending appeals if I were to set aside the judgments which are the object matter of those appeals? Would they continue? could they continue? I do not profess to know the answer. That in my view is the rationale which underlay Etienne. It does not, as counsel suggests, make of Rule 399 and its predecessor a dead letter. The rule is an exceptional rule. Judgments are not reconsidered and set aside lightly; only in the special circumstances envisaged by Rule 399 is there provision made for that to happen. Normally, that will happen after the expiry of an appeal period and often when there has been no appeal. The proper route to follow if new facts are uncovered and there is an appeal pending, is to make an application to the Court of Appeal for leave to introduce that evidence. The tests are almost identical and in that way, the Court of Appeal has the whole question before it and can dispose of it.
[13] That is enough to dispose of the motions before me today.
[14] I have some hesitancy in continuing, but I think in fairness to the parties, I should add the following comments. If I were to deal with these motions on their merits, I would be concerned about the evidence that is before me on the critical issue of the applicants" knowledge of the judge"s involvement in their cases. The affidavit material before me, very clearly speaks only to the knowledge of counsel, while of course, it cannot be expected that the applicants would necessarily know the consequences of any knowledge they had, it does seem to me to be an essential pre-requisite of a Rule 399 application based upon newly discovered material that the applicants themselves must assert that they meet the condition, i.e. did not know that the judge before whom they appeared had been previously involved in the law firm which had acted for each of them or at least did not understand the significance of that fact. It may well be that the applicants, if they did know those things, would not have raised any objection at all to the judge sitting on the matter and hearing it. And it seems to me that that is a matter that I would have to be informed of if I were hearing these motions on their merits. I mention that, as I say, with some hesitation but simply because in my view this matter will have to be decided in due course by the Court of Appeal and it may be that that is an area which counsel should explore before that happens.
[15] Because the conclusions that I have reached are primarily based on procedural grounds, I do not think it appropriate to make an order as to costs.
"James K. Hugessen"
Judge
Ottawa, Ontario
March 23, 2000
__________________
1 Rule 399 (2)
| 399. (2) On motion, the Court may set aside or vary an order (a) by reason of a matter that arose or was discovered subsequent to the making of the order; |
399. (2) La Cour peut, sur requête, annuler ou modifier une ordonnance dans l"un ou l"autre des cas suivants: (a) des faits nouveaux sont survenus ou ont été découverts après que l"ordonnance a été rendue; |
2 Etienne v. Canada (1993), 164 N.R. 318 (F.C.A.)
3 This motion was initially made to the Associate Chief Justice who referred the matter to me.
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