Date: 19990607
Docket: T-34-99
MONTRÉAL, QUEBEC, THE 7TH DAY OF JUNE, 1999
Before: Mr. RICHARD MORNEAU, PROTHONOTARY
Between:
GABRIEL AZOUZ
Applicant
AND
THE ATTORNEY GENERAL OF CANADA
Respondent
ORDER
The respondent"s objection is allowed. However, as was agreed in Court, the respondent shall serve the applicant and file with the Registry a certified copy of the documents delivered in Court to the applicant"s counsel on the morning of the hearing. As discussed, before doing this, the respondent shall ensure that the personal information affecting the applicant or some members of his family, which was identified in Court, is struck out from these documents.
Furthermore, the documents are immediately put back under seal in their envelope and will be retained as such in the Court file pending any order to the contrary.
Page : 2
Finally, pursuant to my order of March 3, 1999, the time limit in Rule 306 as it affects the applicant shall begin to run once the present order becomes final. If this order is appealed, the commencement of the Rule 306 period could be reviewed on a motion. The discussion in this paragraph is applicable to file T-35-99.
Costs on this motion shall follow the event.
Certified true translation,
Bernard Olivier
Date: 19990607
Docket: T-34-99
Between:
GABRIEL AZOUZ
Applicant
AND
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
Mr. RICHARD MORNEAU, PROTHONOTARY:
[1] The Court is required to determine under Rule 318 of the Federal Court Rules, 1998 (the Rules) the respondent"s objection to the transmission to the applicant of documents the latter is seeking in the context of his application for judicial review of the lawfulness of a request for information that the Minister of National Revenue sent to the American tax authorities, the IRS.
[2] The documents sought by the applicant under Rule 317 are the following:
| a) Copy of the Revenue Canada request for information; |
| b) Copies of the documents sent by Revenue Canada, Laval Tax Service, to the Deputy-Minister of National Revenue to prepare the request for information; |
| c) Copies of all T134 forms prepared by Mr. Marcel Depairon, Alain Tessier, Mario Caron and any other Revenue Canada agent or employee, to refer the present case to Special Investigations; |
| d) Copies of all T134 forms returned to the above Revenue Canada agents or employees by Special Investigations; |
| e) Copies of all other documents that were exchanged between the Audit section and the Special Investigations section of Revenue Canada, Laval Tax Service; |
| f) Copy of the document that was prepared by Special Investigations when it decided to launch a "full-scale investigation"; |
| g) Copies of the notes prepared by Mr. Marcel Depairon when he contacted the Canadian Embassy in Saudi Arabia to inquire about the affairs of the Applicant in Canada; |
| h) Copies of the notes and documents prepared and gathered by Mr. Jean Salvo of Revenue Canada, Laval Tax Service, on or before November 21, 1997, when he reviewed the actions of Mr. Marcel Depairon; |
| i) Copies of the notes and documents that were prepared by Mr. Jean Salvo when Mr. Marcel Depairon was replaced by Mr. Mario Caron and ordered not to work on the present file anymore; |
| j) Copies of all the notes and documents exchanged between Mr. Marcel Depairon and Mr. Mario Caron. |
[3] The applicant obtained the production of the documents under paragraph (d) above, so there is no need to rule in this regard.
[4] In regard to the documents under paragraph (e), the general approach taken by the applicant under this paragraph is not consistent with the specific nature required of any application under Rule 317. Furthermore, I agree with the respondent that Rule 317 is not a means of investigation at the applicant"s disposal. See, in this effect, the following decisions:
| Canada v. Pathak, [1995] 2 F.C. 455, pp. 459-460 |
| Canada v. Canada, [1998] 1 F.C. 337 (TD), pp. 355-356 |
| Beno v. Létourneau et al. (1997), 130 F.T.R. 183, pp. 190-191 |
| Pfizer Canada v. Nu-Pharm Inc. (1993), 72 F.T.R. 103 (TD), p. 109 |
[5] As to the documents cited under paragraphs (f) to (j), the respondent"s counsel state in writing that these documents do not exist. Although it is not contained in an affidavit, this statement fulfills the requirements of Rule 318(2) and it suffices for me in the circumstances in regard to the paragraphs in question. Apart from paragraph (h), the applicant has failed to prove anything that might incline me to question the statement provided by the respondent.
[6] As to this paragraph (h), the applicant argues that the review of the actions by Mr. Depairon, an auditor involved at the time in the matter of a corporation related to the applicant, was the subject of a meeting attended by his then counsel, during which a representative of the Department of National Revenue (the Department) allegedly took some notes. It is these notes that the applicant is now seeking.
[7] The respondent tells us that these notes do not exist. Faced with this situation, the applicant is asking that the Court require the respondent to produce an affidavit so he can confront the affiant on this point.
[8] This approach, while possible under rules 317 and 318, is not expressly contemplated by those rules. Moreover, the applicant has not cited any precedents in support. And this approach could have been requested by the applicant much earlier, after the respondent"s objection was made.
[9] Furthermore, it is fair to say, as the respondent"s counsel stated, that the true purpose in seeking some notes that were apparently taken is to be able to establish what was said at this meeting. Yet, as the applicant states, his then counsel was also present at this meeting. The latter is therefore equally qualified to draft an affidavit to this effect and submit it in evidence as proof of what was said. It is unnecessary, therefore, to order the respondent to produce an affidavit in relation to paragraph (h).
[10] As to paragraphs (a) to (c), they cover two documents. Without having seen these documents at this stage, we know that the first is a T134 form that passed from the audit section to the investigations section of the Department; it dealt with further information sought in regard to the applicant. The second document is a memorandum that was to be sent to the American IRS, which essentially repeats the information contained in the T134 form.
[11] According to the respondent, the information that was removed from these two documents (the documents) constitutes the analysis performed at that time by the audit section in regard to the applicant"s tax file (the protected information).
[12] To prevent the transmission of this protected information, the respondent filed in the prescribed form under section 37 of the Canada Evidence Act, R.S.C. 1985, c. C-5, as amended, a certificate signed by the assistant manager of the investigations section of the Laval Tax Service in the Department.
[13] It should be reported as well that the respondent produced to the applicant an expurgated version of the documents, that is, a version of the documents from which the protected information had been removed.
[14] As it was explained during the oral submissions, the applicant is seeking the protected information for the purposes of supporting only one of his four grounds of attack on the lawfulness of the request for information, namely, that this request was prepared by the tax authorities when their initial audit had been informally converted in the meantime into a criminal or quasi-criminal investigation.
[15] In his application for judicial review and in the evidence he has filed to date, the applicant is already arguing, to all intents and purposes, that such a criminal investigation has been initiated in his regard. In the submissions, the applicant"s counsel explained that the institution of this investigation had infringed the applicant"s rights under sections 7 and 8 of the Canadian Charter .
[16] As the applicant puts it, the protected information might possibly assist him in establishing more precisely when such a conversion (from an audit to an investigation) took place.
[17] Viewed from this angle, it seems to me that the applicant has met both the relevance test under Rule 317 and the "likely relevance" test discussed in Bailey v. Royal Canadian Mounted Police , [1990] F.C.J. No. 1139 (T.D.); Goguen v. Gibson, [1983] 2 F.C. 463 (C.A.), [1983] 1 F.C. 872 (T.D.); and Khan v. Canada, [1996] 2 F.C. 316 (T.D.).
[18] The same case law obliges me to look at the documents containing the protected information, in order to balance the interests at stake.
[19] After a full reading of the documents, I can say that in my assessment the protected information in the documents is not such as would assist the applicant in establishing his ground of attack discussed above.
[20] As to the second last paragraph on the second page of the memorandum, where some words have also been protected, I can assure the applicant that the protected words are not words having to do with an information.
[21] Conversely, I am of the opinion that disclosure of the protected information would reveal some aspects of the ongoing investigation that would harm it and might in fact jeopardize the outcome.
[22] It is therefore clear to my mind that in balancing the interests involved, the balance leans strongly in favour of refusing the transmission of the protected information. Although the Court has itself suggested that the protected information might be transmitted to the applicant"s counsel under an order of confidentiality pursuant to Rules 151 and 152, it is my view at the end of the day that the applicant"s counsel will be able to plead his client"s application intelligently without the need to know the protected information. This approach is therefore ruled out.
[23] Consequently, the respondent"s objection is allowed. However, as was agreed in Court, the respondent shall serve the applicant and file with the Registry a certified copy of the documents delivered in Court to the applicant"s counsel on the morning of the hearing. As discussed, before doing this, the respondent shall ensure that the personal information affecting the applicant or some members of his family, which was identified in Court, is struck out from these documents.
[24] Furthermore, the documents are immediately put back under seal in their envelope and will be retained as such in the Court file pending any order to the contrary.
[25] Finally, pursuant to my order of March 3, 1999, the time limit in Rule 306 as it affects the applicant shall begin to run once the present order becomes final. If this order is appealed, the commencement of the Rule 306 period could be reviewed on a motion. The discussion in this paragraph is applicable to file T-35-99.
[26] Costs on this motion shall follow the event.
MONTRÉAL, QUEBEC
June 7, 1999
Certified true translation,
Bernard Olivier
Federal Court of Canada
Trial Division
Date: 19990607
Docket: T-34-99
Between:
GABRIEL AZOUZ
Applicant
AND
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
| NAMES OF COUNSEL AND SOLICITORS OF RECORD |
| THE ATTORNEY GENERAL OF CANADA |
| PLACE OF HEARING:Montréal, Quebec |
| DATE OF HEARING:June 2, 1999 |
| REASONS FOR ORDER OF RICHARD MORNEAU, PROTHONOTARY |
| Michel Mathieu for the applicant |
| Maria Grazia Bittichesu for the respondent |
| Sweibel Novek for the applicant |
| Morris A. Rosenberg for the respondent |
| Deputy Attorney General of Canada |
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