Date: 20080111
Docket: T-508-07
Citation: 2008
FC 38
Ottawa, Ontario, January 11, 2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
MINISTER
OF NATIONAL REVENUE
Applicant
and
GREGORY CLYDE HUMPHREYS OPERATING AS
WAYFARER TECHNOLOGIES
Respondent
REASONS FOR ORDER AND ORDER
[1]
These are
the reasons for my oral judgment rendered from the bench on January 9, 2008 in
which I found Mr. Humphreys to be in contempt of the Order of Justice Gibson
dated May 10, 2007 and my Order dated November 6, 2007.
[2]
The
present proceedings were a continuation of contempt proceedings heard on
November 5, 2007 in a Show Cause Hearing with respect to contempt of
Justice Gibson’s Order.
[3]
On May 10,
2007, Justice Gibson issued an order requiring the Respondent to comply with a
Requirement for Information issued July 15, 2005 in regards to a GST audit. The
pertinent term of that Order is:
THIS COURT ORDERS pursuant to section
231.7 of the ITA and section 289.1 of the ETA that the Respondent shall comply
with the Requirement issued by the Minister and shall forthwith, and in any
event not later than 30 days after being served with this Order, provide the
Information and Documents to a Canada Revenue Agency officer acting under the
authority conferred by the ITA and ETA or other person designated by the
Commissioner of Customs and Revenue.
[4]
The
Applicant alleged that the Respondent had failed to provide the Information and
Documents ordered despite the fact that he had been present for the Compliance
Hearing, consented to the Compliance Order and was personally served with that
Order.
[5]
On
November 5, 2007, a Show Cause Hearing was held at which the Respondent was
present and gave evidence. That Hearing was adjourned to be set on request of
either party and Mr. Humphreys was given a last chance to provide the
Information and Documents on terms to which he consented. The specific term
was:
Gregory Clyde Humphreys shall at or about
09:00 a.m. on Friday, November 16, 2007 at his residence at 328 Weddenburn Road
S.W., Calgary deliver up to representatives of the Minister the records ordered
by Justice Gibson to be provided in his May 10, 2007 Order.
[6]
In his
evidence on November 5, 2007 Mr. Humphreys testified that he had the required
documents delivered to the Hays Building in Calgary (the federal building at
which the responsible officials were located) on June 20, 2007. He says, and
the evidence confirms this, that the building suffered a flood. He produced
photographs of the container which he claimed held the relevant documents and which
was claimed to be damaged, possibly in the flood. The container was returned on
August 28, 2007. Mr. Humphreys took no further steps to deliver the Information
and Documents.
[7]
At the
Hearing of January 9, 2008, the Applicant’s witnesses testified that they went
to Mr. Humphreys’ home pursuant to the November 6, 2007 Order. Prior to doing
so, Jason Sheppard, the Canada Revenue Agency (CRA) official responsible for
the file, picked up his voicemail message from Mr. Humphreys in which Mr.
Humphreys said that he was en route from British Columbia and expected to make
the scheduled 9:00 a.m. meeting.
[8]
When Mr.
Sheppard and his associate Mr. Wong arrived at Mr. Humphreys’ home, there was a
note indicating that the door bell did not work and that visitors were to knock
and/or call Mr. Humphreys’ cell phone. Mr. Sheppard did just that, with no
response, and waited a half-hour. Messrs. Sheppard and Wong left briefly and
returned about 10:00 a.m. and repeated the process without success. Neither
witness saw nor heard anything (not even the cell phone ringing) to suggest
that Mr. Humphreys was in the house despite their efforts to discern his
presence.
[9]
Except for
this Contempt Hearing, neither official has heard from Mr. Humphreys since
November 16, 2007 with regard to delivery of the Information and Documents.
[10]
Mr.
Humphreys’ evidence is that after arriving at his home at 8:00 a.m. on November
16, 2007 to meet with CRA officials, he suffered some sort of spell, and fell
down on the floor where he remained immobile from Friday to Sunday. He also
says that he heard Mr. Sheppard, that he called out for help and accuses Mr.
Sheppard of wilfully ignoring his pleas for assistance.
[11]
Mr.
Humphreys also claims that subsequent to November 16, 2007, he called Mr.
Sheppard on two occasions, left his voicemail message and the calls were not
returned. Mr. Sheppard denies ever having received these calls.
[12]
Mr.
Humphreys, in addition to testifying, was permitted leeway from the usual rules
to file an affidavit in which he attaches what he claims is evidence to support
his medical condition. The evidence is a prescription of April 30, 2007 for
Tylenol 3, a doctor’s note of December 3, 2007 saying that he is ill and unable
to work (despite the fact that Mr. Humphreys had not been working for some time
before the note), a requisition for blood tests, a requisition for a CT scan
and some articles from the Brain Injury Resource Center.
I. LEGAL
PRINCIPLES
[13]
The Federal
Courts Rules R. 466(b) provides that a person is guilty of contempt
who disobeys an order of the Court.
[14]
The
principles to be applied when considering whether to find a person in contempt
of court are:
1. The
party alleging contempt has the burden of proving such contempt, and the person
alleged to be in contempt (the contemnor) need not present evidence to the
Court.
2. The constituent
elements of contempt must be proven beyond a reasonable doubt.
3. In the
case of disobedience of an order of the Court, the elements which must be
established are the existence of the Court order, knowledge of the order by the
alleged contemnor, and knowing disobedience of the order.
4. Unless
the Court otherwise directs, evidence to establish contempt shall be given
orally.
[15]
The
fundamental purpose of the Court’s contempt power is to ensure respect for the
judicial process so as, in turn, to secure the proper and effective functioning
of the judicial system. In short, the rule of law requires that court orders be
complied with.
II. FINDINGS
[16]
This case
turns on credibility as to Mr. Humphreys’ story which is largely uncorroborated
and is in direct conflict on many important points to that of the CRA
officials. Where there is direct conflict, such as whether phone calls were
made or whether pleas for assistance were ignored, I accept the evidence of the
CRA officials whose evidence was clear, unwavering and dispassionate.
[17]
With
respect to the balance of Mr. Humphreys’ evidence, I find him not to be
credible. I have observed his manner of presentation and responding to
questions, his retreat from categorical statements when confronted, his obvious
attempts to evoke sympathy such as plainly leaving his pill bottle on the
counsel table, and the inconsistency in his evidence (for example, his ability
to drive frequently to British Columbia to see his mother and his claim that he
has such trouble seeing that he cannot put the required documents together).
This inconsistency is compounded by his ability to put together a detailed
affidavit when his interests to do so were at stake.
[18]
On the
basis of the evidence, I am satisfied beyond a reasonable doubt that:
1. Mr. Humphreys was
aware of both Court Orders.
2. While I
am sceptical of Mr. Humphrey’ evidence that he delivered documents to CRA in June
2007, even by his own admission he knew in early September that CRA did not
have the information required. He took no steps to ensure compliance with
Justice Gibson’s Order.
3. His
description of events on November 16, 2007 which prevented him from delivering
the documents is not credible.
4. He did
not then or even to date comply with the Court’s Order of November 16, 2007.
5. Mr.
Humphreys has knowingly and deliberately engaged in a course of conduct
designed to (and has largely succeeded in) frustrating the requirement to
produce the Information and Documents so ordered by this Court.
[19]
Mr.
Humphreys’ contempt is a continuing one and is not an isolated incident. It is arguable
that each day of knowing refusal to comply is a contempt. Mr. Humphreys
acknowledges that he has the Information and Documents at home, yet has made no
effort to deliver them even in the case of this continuation of these contempt
proceedings.
III. CONCLUSION
[20]
Therefore,
I find Mr. Humphreys knowingly and deliberately in contempt of the Court’s
Orders of May 10 and November 6, 2007.
[21]
The Court
of Appeal has made it clear in Warman v. Winnicki, 2007 FCA 52, that
contempt proceedings have at least two distinct phases. The first is the
finding of contempt and if so found, a further hearing on sentencing.
[22]
A
sentencing hearing will be scheduled at the earliest opportunity, by
videoconference if necessary. The Respondent should be prepared to address the
issues of possible incarceration, penalty and costs.
[23]
The
Respondent continues to be under Court order to produce the Information and
Documents which are to be produced forthwith.
ORDER
THIS COURT ORDERS that:
1. Gregory
Clyde Humphreys is found to be in contempt of this Court’s Orders of May 10,
2007 and November 6, 2007.
2. A
sentencing hearing is to be scheduled at the earliest date possible. The
Applicant is to take out an Order fixing the date for the sentencing hearing.
3. The
Applicant is to effect service of these Reasons for Order and Order and any
Scheduling Order by personal service on Mr. Humphreys or substituted service by
leaving a copy of such documents at his residence at 328 Weddenburn Road S.E., Calgary, Alberta.
“Michael
L. Phelan”
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