Canada v. Mathers, docket ITA-8856-99

Date: 20001026

Docket: ITA-8856-99

MONTREAL, QUEBEC, OCTOBER 26, 2000

Before:            RICHARD MORNEAU, PROTHONOTARY

In re the Income Tax Act,

- and -

In re one or more assessments made by the Minister of National Revenue pursuant to one or more of the following statutes: the Income Tax Act, the Canada Pension Plan and the Employment Insurance Act,

AGAINST:

JEAN-GUY MATHERS

Judgment debtor

AND

CINÉPARC ST-EUSTACHE INC.

Objector

ORDER

1.          The examinations of Mr. Kessiby and Ms. Vinette will proceed before November 24, 2000 at a date and place to be determined between counsel for the parties, so that the latter may answer:

-      questions to which Her Majesty has withdrawn her objections;

-      the question underlying objection O-9 in the examination of Ms. Vinette;

-      questions resulting from the undertakings given;

and any question resulting from the answers to be given.

2.          The accountant who prepared the objector's financial statements for the year ending December 31, 1999 may file these as an exhibit to the latter's affidavit, to be served and filed on or before November 10, 2000. Any examination on this affidavit shall be held at the same time as the examinations of Mr. Kessiby and Ms. Vinette.

3.          Any motion resulting from the preceding shall be served and filed before December 22, 2000.

4.          The objector's record under Rule 364 - including the full written submissions - shall be served and filed on or before January 26, 2001. Similarly, that of Her Majesty under Rule 365 shall be served and filed on or before February 16, 2001. The date of the hearing on the merits shall be set by separate order.

5.          Costs to follow.

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

Date: 20001026

Docket: ITA-8856-99

In re the Income Tax Act,

- and -

In re one or more assessments made by the Minister of National Revenue pursuant to one or more of the following statutes: the Income Tax Act, the Canada Pension Plan and the Employment Insurance Act,

AGAINST:

JEAN-GUY MATHERS

Judgment debtor

AND

CINÉPARC ST-EUSTACHE INC.

Objector

REASONS FOR ORDER

RICHARD MORNEAU, PROTHONOTARY:

[1]         This is a motion by the objector Cinéparc St-Eustache Inc. to have the Court deal with certain objections raised following examinations on affidavit of representatives of the judgment creditor (Her Majesty), to be authorized to file supplementary affidavits and for a new schedule to be set.

[2]         On the last point, it is at once apparent that the Court will in fact have to make a new schedule in the order accompanying these reasons, since certain stages of the schedule laid down by order of July 6, 2000 have not been completed to date. Additionally, this motion essentially makes it very difficult to comply with the deadlines occurring near the hearing on the merits set down for October 31, 2000.

OBJECTIONS

Examination of Mr. Kessiby

Objections made on the basis of s. 37 of the Canada Evidence Act, R.S.C. 1985, c. C-5 ("the Act")

[3]         In the examination on affidavit of Marcel Kessiby, held on September 19, 2000, the objector put several questions to the witness concerning the investigation currently under way, which involves inter alia the judgment debtor and the objector itself.

[4]         As the information is such that it cannot be disclosed without affecting the ongoing investigation, the plaintiff made an objection to disclosure of this information under s. 37 of the Act.

[5]         In the certificate filed, it was submitted that the public interest in not disclosing the information requested, because of the need to maintain confidentiality of the ongoing investigation, took priority over the public interest in disclosing the information.

[6]         The objector argued that it was entitled to have the information requested, since the witness referred to the investigation in its affidavit in reply. It has to be said that this is the only argument submitted by the objector to gain access to the protected information.

[7]         On review, I consider that the information regarding the ongoing investigation could in no way assist the objector in the instant action, which is to determine who owns the money seized by the plaintiff on December 1, 1999 from the safe in the judgment debtor's premises.

[8]         It would thus seem to be the case that, by the questions covered by the s. 37 certificate, the objector is seeking by indirect means to obtain information on the ongoing investigation.

[9]         The objector therefore has not met the test of "likely relevance" discussed inBailey 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.). Under those precedents, therefore, I do not have to look at the protected information in order to weigh the competing interests.

[10]       Accordingly, and also in view of the reasons stated in detail by Her Majesty in her written submissions under each of the following objections, the questions underlying objections O-7, O-9 to O-14, O-16 and O-18 to O-21 will not have to be answered.

Other objections

[11]       I consider that the witness has given a sufficient answer to the question in objection 3.

[12]       The question underlying objection 23 is irrelevant and the information which it seeks is of a public nature.

[13]       The question underlying objection 24 is irrelevant.

Examination of Ms. Vinette

[14]       The objections raised in connection with the examination of Claudine Vinette must be dealt with as follows.

[15]       On objection 2, it ultimately appears that the judgment of this Court inMarkevich v. Canada, [1999] 3 F.C. 28, governs the situation and the question under that objection becomes irrelevant.

[16]       Objection 3 is to the same effect as objections 4 and 9. On these objections, I consider that the witness has answered objections 3 and 4. Although the answer to be given may seem obvious, the question underlying objection 9 may be asked again.

Affidavits in reply

[17]       As the objector has not filed in support of its motion the affidavit or affidavits in reply which it intended to file, it has been impossible for this Court to determine exactly whether the tests laid down by the Court in Côté v. Canada, [1996] F.C.J. No. 1670, were met.

[18]       Further, in paragraph 27 of its written submissions the objector nevertheless sought to describe the various items that would be covered by its affidavits in reply.

[19]       On paragraph 27(a), (b) and (e), for the reasons stated by Her Majesty in her written submissions, the affidavits in reply may not be allowed.

[20]       On paragraph 27 (c), the accountant who prepared the financial statements may file them as an exhibit in support of an affidavit.

[21]       On paragraph 27(d), the objector has not established the reasons why it was unable to respond to the newspaper articles cited by Her Majesty before cross-examining the deponent. The objector is therefore not authorized to file an affidavit in reply on this point. Nevertheless, the objector may note that although hearsay is permissible on a motion, the weight the Court may eventually give the said newspaper articles will be very limited.

[22]       An order is made accordingly.

MONTREAL, QUEBEC

October 26, 2000

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

                                                 FEDERAL COURT OF CANADA

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE No.:                                         ITA-8856-99

STYLE OF CAUSE:                                       In re the Income Tax Act,

- and -

In re one or more assessments made by the Minister of National Revenue pursuant to one or more of the following statutes: the Income Tax Act, the Canada Pension Plan and the Employment Insurance Act,

AGAINST:

JEAN-GUY MATHERS

Judgment debtor

AND

CINÉPARC ST-EUSTACHE INC.

Objector

PLACE OF HEARING:                                 Montréal, Quebec

DATE OF HEARING:                                   October 23, 2000

REASONS FOR ORDER BY:                      RICHARD MORNEAU, PROTHONOTARY

DATE OF REASONS FOR ORDER:          October 26, 2000

APPEARANCES:

Chantal Contois                                                             for the judgment creditor

Yves Ouellette                                                   for the objector

SOLICITORS OF RECORD:

Morris Rosenberg                                                          for the judgment creditor

Deputy Attorney General of Canada

Gowling, Lafleur, Henderson                                          for the objector

Montréal, Quebec