Date: 20070711
Docket: T-1757-06
T-1772-06
Citation:
2007 FC 739
Ottawa, Ontario, the 11th
day of July 2007
Present:
The Honourable Mr. Justice Montigny
BETWEEN:
MINISTER
OF NATIONAL REVENUE
Applicant
and
DANIEL
JOURDAIN
Respondent
REASONS FOR ORDER AND ORDER
[1]
The Court
has before it a motion, brought under rules 466 and 467 of the Federal Court
Rules (the Rules), for a contempt order against Daniel Jourdain. This
motion is brought following a show cause order requiring Mr. Jourdain to appear
before a judge of this Court to hear proof with respect to an alleged contempt
of court and to be prepared to present any defence he might have. Mr. Jourdain
did not appear in Court to respond to the allegation of contempt as required by
the show cause order.
HISTORY OF THE PROCEEDINGS
[2]
The
Minister of National Revenue (the Minister) issued to the respondent, by a
letter dated April 19, 2006, and delivered to him by hand the same day, a
requirement to provide information pursuant to paragraphs 231.2(1)(a)
and (b) of the Income Tax Act (the Act), R.S.C., 1985
(5th Supp.), c. 1. The following documents were required:
a. The record of wages, from
January 2003 to December 2003;
b. The record of wages, from
January 2004 to December 2004;
c. The record of wages, from
January 2005 to December 2005;
d.
The record
of wages, from January 2006 to the date of response to the letter of
requirement;
e.
The bank
statements and cancelled cheques covering the years 2003, 2004, 2005 and 2006.
[3]
Despite
the time given to the respondent to reply, the Minister’s requirement went
without response. The Minister therefore undertook legal action to obtain an
order requiring the respondent to comply with the requirement, pursuant to
section 231.7 of the Act.
[4]
On
October 23, 2006, Mr. Justice Simon Noël of this Court issued an order
directing the respondent to reply to the Minister’s requirement to provide
information within the 10 days following the service of the order. This
order was delivered to Daniel Jourdain in person at his workplace on November 6,
2006.
[5]
When the
respondent refused to comply with Noël J.’s order, the Minister decided to
institute contempt proceedings with respect to the order in question. On
April 2, 2007, Mr. Justice Luc Martineau concluded that the
evidence established a prima facie case that the respondent had
disobeyed Noël J.’s order. Accordingly, he issued an ex parte order
requiring the respondent to appear before this Court on April 30, 2007, at
2:30 p.m., and to be prepared to present any defence he might have with
respect to the alleged contempt of court, the whole pursuant to
subsection 467(2) of the Federal Court Rules.
[6]
On
April 12, 2007, the applicant applied to the Court for an extension of the
deadline granted to serve the orders and motion records, as well as a postponement
of the date of appearance. On April 13, 2007, Luc
Martineau J. issued an amended ex parte order enjoining Daniel
Jourdain to appear before this Court on May 28, 2007, at 2:30 p.m.,
and to be prepared to present any defence he might have with respect to the
allegations against him of contempt of Noël J.’s order. The Court also ordered
that the applicant serve a copy of this order and of the applicant’s motion
record to Mr. Jourdain in person, as well as a list of the witnesses the
applicant intended to call in order to prove the alleged act.
[7]
Given the
impossibility of tracking the defendant to serve him in person the documents
mentioned in Martineau J.’s order, the applicant again addressed the Court for
an additional extension of the deadline and for authorization for non-personal
service. In a new order issued on May 3, 2007, Luc Martineau J.
granted authorization for the bailiff to serve his order dated April 13 as
well as the applicant’s motion record by leaving a copy of these documents [translation] “in the mailbox, under the
door or affixed to the door of his only known address” and by publishing the
documents in question [translation]
“by public notice in a Montreal regional newspaper, namely the Journal de
Montréal, published Saturday, May 12, 2007”. Proof of service,
which occurred May 10, 2007, was entered into the Court record on
May 14, 2007, along with a copy of the public notice that appeared in the Journal
de Montréal in accordance with Martineau J.’s order.
[8]
On
May 28, 2007, Martineau J. adjourned the hearing until the general
sittings of the Court in Montreal, June 4, 2007, to
allow counsel for the applicant to perform further verifications in this case
regarding the bailiff’s service of Noël J.’s
order dated October 23, 2006, to the respondent. Although he was
satisfied with the proof of service of the amended order issued on
April 13, 2007, and of the applicant’s motion record, as well as the
publication of the public notice in the Journal de Montréal on May 12,
2007, Martineau J. found that counsel for the applicant could not
simultaneously testify and submit arguments with respect to the respondent’s
alleged acts and the service of Noël J.’s order.
[9]
The
hearing was again postponed until June 18, 2007. Given that the respondent again
failed to appear, I decided to adjourn the hearing once again until
June 29, 2007, instructing counsel for the applicant to make a final
attempt, in cooperation with the representative of the Minister responsible for
the file, to contact the respondent and inform him of the many orders enjoining
him to appear before this Court to present any defence he may have with respect
to the allegations against him of contempt of court. Despite all good faith
efforts to reach the respondent, he could not be tracked down, so the motion
hearing was held in his absence on June 29, 2007.
ANALYSIS
[10]
Paragraph
466(b) of the Rules sets out that a person is guilty of contempt of
Court who “disobeys a process or order of the Court”. Clearly it is the party
alleging contempt that has the burden of proof beyond a reasonable doubt (rule
469). Accordingly, a person alleged to be in contempt may not be compelled to
testify nor be obliged to submit any evidence whatsoever to the Court (rule 470(2)).
Moreover, the applicant’s burden of proof applies to all the essential elements
of contempt; it must therefore establish the existence of the order, the fact
that the accused knew of its existence, and the disobedience itself. However,
it is not necessary to prove guilty intent; that can at most be considered,
like the good faith of the respondent, at the moment of determining the
sanction.
See: - The Minister of National
Revenue v. Kevin William Middleton, 2006 FC 455;
- Canada (Minister of National
Revenue) v.
Wigemyr, 2004 FC 930;
- The Minister of National
Revenue v. Jane Becelaere, 2007 FC 409.
[11]
In this
case, there is no doubt as to the existence of Noël J.’s order of
October 23, 2006. The applicant’s record even contains a certified true
copy of this order. It should be noted that the order is very clear and leaves
no room for ambiguity.
[12]
There also
seems to be no doubt in this case that Mr. Jourdain knew of the existence of
Noël J.’s order. Subsection 146(1) of the Rules sets out in paragraph (a)
that service of a document may be proven, in Quebec, by a certificate of service of a
sheriff, bailiff or other authorized person in accordance with the Code of
Civil Procedure. As mentioned above, counsel for the applicant filed with
the Court the service summary prepared by a bailiff and duly registered on
November 6, 2006, attesting that the certified true copy of Noël J.’s
order had been personally handed to Mr. Jourdain. I have no choice but to
conclude that the respondent was aware of the existence of Noël J.’s order.
[13]
The remaining
issue is whether Mr. Jourdain disobeyed this order. Counsel for the
applicant called as a witness Jean-Fresnel Thélismond, a Trust Account Examiner
with the Canada Revenue Agency, who presented the following facts. As mentioned
in the account of the facts leading to this motion, Mr. Jourdain refused
to reply to a requirement to provide information from the Minister, despite
being granted multiple extensions. It appears that Mr. Jourdain frequently
changes his place of residence without informing the authorities in the
Department. The last time Mr. Thélismond was in contact with him, last
fall, Mr. Jourdain made it clear that he had no intention of complying with the
Department’s requirement to provide information and told him they would [translation] “see each other in Court”.
[14]
After
that, Mr. Jourdain gave no more signs of life to the Department or to
Mr. Thélismond. Following my instructions of June 18, several
unsuccessful attempts were made to try to locate Mr. Jourdain. The Quebec
Enterprise Register was searched, as were a credit assessment company
(Equifax), the files of the Société
de l’assurance automobile du Québec, the register of personal and immovable
real rights, the Internet site Canada411.ca, as well as the criminal index and
civil and appeals index where all court records in Quebec are filed.
Mr. Jourdain’s address could not be located through any of these
resources.
[15]
I am of
the opinion that Mr. Thélismond’s testimony is credible and trustworthy.
In light of all his efforts to locate the respondent, the latter’s cavalier
attitude when he could be reached, his systematic refusal to supply the
required information and the notice that appeared in the Journal de Montréal
on May 12, 2007, I find that the evidence shows beyond a reasonable doubt
that Mr. Jourdain failed to provide the information required by Noël J. in
his order dated October 23, 2006 and that he is doing everything in
his power to escape this Court order.
[16]
I am also
of the opinion that the applicant complied with the amended order of
Martineau J. dated May 3, 2007, in which he authorized the
non-personal service of the show cause order. All reasonable means were used to
advise the respondent of this hearing and of his option to defend himself
against the contempt charges against him.
[17]
I
therefore allow the Minister’s motion and find Daniel Jourdain in contempt of
court, both personally in docket T-1772-06 and as director of the company (9131-8113
QUEBEC INC.) in docket T-1757-06.
[18]
Counsel
for the applicant is asking this Court to order the respondent to pay a fine in
the amount of $1,500.00$, payable within ten (10) days of service of the order
to be rendered. It is also asking this Court to order the respondent to
provide, by registered mail, any documents and information listed in the
Minister’s requirement that are still missing within ten (10) days of service
of the order to be rendered, to the attention of Jean-Fresnel Thélismond.
Finally, it is seeking $2,338.43 in costs, payable to the applicant within ten
(10) days of the order to be rendered.
[19]
Given the
circumstances of this case and the evidence before me, I consider these
requests to be justified and to constitute an appropriate sanction. A period of
30 days rather than 10 days to comply, however, seems to me to be more
appropriate in this case. I will also add a disposition to my order, given the
difficulty in locating the respondent and the real possibility that this order
will remain a dead letter because it cannot be served. In the event that
Mr. Jourdain fails to comply with Noël J.’s order and this one, I
order that he be brought before the Court to explain why he should not be
imprisoned for a period of 30 days.
ORDER
THE COURT:
DECLARES Daniel Jourdain to be in
contempt of court for the first time;
SENTENCES Daniel Jourdain to a fine of
$1,500.00, payable within ten (10) days of this order (the payment shall
be made to the order of the Receiver General of Canada);
ORDERS Daniel Jourdain to deliver
the documents and information requested in the Minister’s requirement, namely
the following:
1) The record of
wages, from January 2003 to December 2003;
2) The record of
wages, from January 2004 to December 2004;
3) The record of
wages, from January 2005 to December 2005;
4) The record of wages, from January 2006
to the date of response to the letter of requirement;
5) The bank statements and cancelled
cheques covering the years 2003, 2004, 2005 and 2006. This information is
required for the same periods referred to in paragraphs 1) through 4) for all
employees, by registered mail, to the attention of Jean-Fresnel Thélismond,
Trust Account Examiner, Tax Services Office, Canada Revenue Agency,
305 René-Lévesque Blvd West, Montréal, Quebec, H2Z 1A6;
SENTENCES Daniel Jourdain to pay costs
to the applicant in the amount of $2,338.43, payable within ten (10) days of
this order (the payment must be made to the order of the Receiver General of
Canada);
ORDERS that, in the event that
Daniel Jourdain fails to pay the fine and the costs and to produce the required
documents and information, all within 30 days of service of this order, he be
brought before a judge of this Court to explain why he should not be imprisoned
for a period of up to 30 days;
ORDERS that this order be served as follows:
1) by authorizing a bailiff to leave a copy of this order to the attention of
Daniel Jourdain in the mailbox or under the door of his only known address,
2968, rue Lapierre, in Montréal, Quebec, H8N 2W9; AND 2) by publishing this
order by public notice in the July 21, 2007, editions of the Journal de
Montréal and La
Presse.
“Yves
de Montigny”
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