Date: 20071221
Docket: T-1188-06
Citation: 2007
FC 1363
Ottawa, Ontario, December 21, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
BRIAN
AIRTH et al
Applicants
and
THE
MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR ORDER AND ORDER
(Motion to Convert)
[1]
The
Applicant applied to convert this judicial review into a Simplified Action to
which the Respondent was opposed.
[2]
I have
earlier this week indicated to the parties that the motion was allowed only in
part.
[3]
The
parties have known since July that this case was set down peremptorily for
hearing to commence February 18, 2008 and the Applicant has brought this motion
at a late date.
[4]
I am not
convinced that all the issues in this case need to be resolved through the
procedures of an action even the modified procedures of a Simplified Action.
The Court is well able to understand complex organizational structures and the
operation of these structures through the use of affidavits and
cross-examination and the documents in the proceedings.
[5]
The Court
is not persuaded that the Applicants’ concern is that it is fairer to the
reputation of the Respondent’s witnesses that this matter proceed as an action.
The Respondent resists this contention and it does not seem logical that the Applicants
should be asserting the interests of the Respondent and its officials.
[6]
The only
area in which cross-examination of the witnesses at a hearing would be of
assistance to the Court is in respect of the purpose of the RFIs, the
Respondent’s credibility of and inferences to be drawn from the witnesses’
explanations and conduct. In this regard, these issues are somewhat similar to
those facing the Court in Agustawestland International Ltd. v. Canada (Minister of Public Works and
Government Services),
2005 FC 1640 (see in paragraphs 20 and 21 thereof).
[7]
A similar
point was made by Prothonotary Milczynski in Jazz Air LP v. Toronto Port
Authority, 2006 FC 705 at paragraph 12:
To properly adjudicate the allegations of
criminal conspiracy and to determine the subjective intentions and knowledge of
the parties, the Court should have the opportunity to assess the credibility of
witnesses. I agree with the submissions of the Deluce Parties, that viva
voce evidence will be essential and that these issues cannot be properly
determined on affidavit evidence, or in a summary proceeding.
[8]
The Court
is advised that cross-examinations of the witnesses took one week to complete
and that much of the time was spent on documentary issues which should not
arise in the hearing of this matter.
[9]
By
following this modified procedure as outlined later, the Court should also be
able to accommodate the problem of obtaining the testimony of Sgt. Butler who
is alleged to be an important witness but who has not been available due to
personal circumstances.
[10]
Therefore,
the motion to convert is allowed only in part to the extent outlined in these
Reasons, in particular to permit cross-examination at the hearing of this
matter. There is no necessity to formally convert this matter to an action at
this stage.
[11]
Moreover,
the matters related to the constitutional issues are already the subject of an
Order dated December 19, 2007.
[12]
The
Applicants have not indicated that they intended to seek leave to file any
further affidavit evidence. The Respondent has indicated that it may file
evidence as a result of the Amended Application.
[13]
For
purpose of the conduct of the non-constitutional question aspect of this
matter, the procedures necessary shall be as follows:
(a)
The style
of cause shall not be amended.
(b)
Subject to
further Court Order, the affidavits previously produced shall constitute the
evidence of the party.
(c)
The
cross-examinations and any other admissions shall constitute the discovery of
the particular witness or party (as the case may be).
(d)
At the
time of filing the Applicants’ Record (January 14, 2008), the Applicants shall
serve and file a Statement of Claim which shall include the particulars ordered
in respect of the Amended Application (see Reasons dated December 18, 2007).
The Statement of Claim shall not seek remedies or allege material facts other
than those contained in the latest Amended Application as permitted.
(e)
On or
before January 23, 2008, the Respondent shall serve and file a Statement of
Defence which shall include any material facts upon which the Defendant relies
in respect of s. 1 of the Charter of Rights and Freedoms.
(f)
On or
before January 30, 2008, the Applicants shall serve and file a Reply and List
of Documents to be relied upon at the hearing.
(g)
On or
before February 11, 2008, the Respondent shall file its similar List of
Documents.
[14]
The
hearing shall be conducted as a judicial review subject to the
cross-examination of any affiant in this matter.
[15]
Therefore,
it is ordered that the motion is granted in part as set forth in the Reasons.
Costs shall be in the cause.
ORDER
THIS COURT ORDERS that the motion is granted in part
as set forth in the Reasons. Costs shall be in the cause.
“Michael
L. Phelan”
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