Island Coastal Services Ltd. v. Canada, docket T-2084-90

     T-2084-90

BETWEEN:

     ISLAND COASTAL SERVICES LTD.

     Plaintiff

     - and -

     HER MAJESTY THE QUEEN

     Defendant

     REASONS FOR ORDER

MacKAY J.:

     Two pre-trial conferences were held in Charlottetown, P.E.I., on June 16, 1997 and on July 31, 1997, with counsel representing both parties (the defendant then being described as the Minister of National Revenue, as in the plaintiff's statement of claim). Also in attendance at both conferences was Mr. Harry MacLauchlan, President of Island Coastal Services, representing the corporate plaintiff.

     At the conclusion of the first PTC on June 16, it appeared that there were prospects of at least narrowing the issues between the parties. This Court then made specific proposals intended to facilitate that objective, and, if that were achieved and only a very few days were anticipated for a trial on certain narrow issues, for expediting trial. An Aide Memoire containing those proposals, dated June 25, 1997 was issued to the parties, and a copy is in the Court's file.

     When the Court reconvened on July 31, 1997, the hopeful outlook from the previous conference appeared to be unwarranted. The Court was advised that counsel for the Crown, other than counsel in attendance on June 16 and July 31, declined to provide any "will-say statements" of evidence anticipated from Crown witnesses at trial, or to provide any letter indicating the Crown's only intent was to collect duties considered to be due under the Customs Act and not to cast adverse aspersions in regard to Mr. MacLauchlan or the plaintiff corporation. Further, counsel indicated that the Crown would not accept MacKay J. as trial judge even if by so doing a trial of less than the seven days originally forecast by the Crown might be expedited. Counsel for the Crown reportedly asked for a further response by the plaintiff to the earlier notices of the Crown to admit facts and to admit documents. From the perspective of counsel for the plaintiff the Crown's position was seen as negating any attempt to narrow the issues or to settle the matter.

     In sum, nothing had been accomplished by counsel for the parties in the interim between the two conferences and this Court's earlier proposals had gone for nought. At the second conference, the Crown was represented by the same junior counsel as had attended on June 16. He had available and tabled for the Court and for plaintiff's counsel a one-page document entitled "Anticipated Testimony from Crown Witness" which includes brief reference to testimonies anticipated from Florida based witnesses, and a four-page document, "Witness Testimony" which summarizes possible testimony from witnesses who are officers of the Customs Service of the Department of National Revenue. These indicate the essence of evidence that may be anticipated from witnesses for the Crown.

     It is apparent that the parties are at a stand-off, unwilling to narrow issues or settle the plaintiff's claim, at least at this stage. Statements in Crown documents provided to the plaintiff's solicitor, suggest Mr. MacLauchlan had important political connections upon which he might rely, and those statements, unfounded in Mr. MacLauchlan's view, have upset him since they are perceived as questioning his integrity.

     In discussion with counsel on the time a trial might require, counsel for the defendant suggested that realistically a trial should take less than the seven days originally suggested on behalf of the defendant; for the plaintiff, counsel suggested it might take more than ten days with substantial time (a full day or more) of cross-examination of the Crown's investigating officer, assuming he is called by the Crown, and with constitutional arguments to be addressed.

     In this Court's view a trial concerning some $8,700.00 of customs duties claimed, which trial is an appeal pursuant to s. 135 of the Customs Act, would not ordinarily warrant more than one or at most two days. The difficulty in agreeing upon a short trial arises from each party's different perceptions of the case and of the likely testimony.

A key may well be the evidence, if any is provided, from the vendor to the plaintiff. At the June conference counsel for the Crown indicated the vendor's testimony would clearly support its case, but from the conference on July 31 my sense is that there is some uncertainty about that, and indeed whether the vendor would be called from Florida to testify.

     At the conclusion of the second PTC I issued certain oral directions which I now confirm by Order. In three respects I now add to those directions. First, the Order provides that in accord with the Rules of the Court each party should file an affidavit of documents (see Rule 448). Documents have been exchanged but so far as the file record shows no affidavit of documents has been filed. While this action was commenced before the current Rule 448 came into force, it seems appropriate that long delayed preparations for trial should now conform to existing rules. Second, the Order directs that in accord with Rule 483 the parties make joint application for trial dates when all steps, including discoveries, are completed for trial. When that is done, I anticipate the office of the Associate Chief Justice may again direct a pre-trial conference, to attempt again to further narrow issues between the parties, by this or another member of the Court. Third, I direct that these Reasons be circulated to counsel, to the Associate Chief Justice and to any judge conducting further pre-trial conferences but the Reasons are to be sealed in an envelope marked "For Purposes of Pre-trial Conferences, Not for the Eyes of a Trial Judge".

     The Order provides that henceforth the style of cause herein shall be as set out at the commencement of the Order, and of these Reasons, including Her Majesty the Queen as the Defendant, in place of the Minister of National Revenue, originally named as Defendant. That change is initiated by this Court without objection by the Crown within the time set by oral directions on July 31. The change is in accord with the Federal Court Act and practice in this Court.

     An Order, to be filed on the regular Court file when circulated to counsel, is issued this day.

     ____________________________________

     JUDGE

OTTAWA, Ontario

August 29, 1997.