Date: 20060331
Dockets: A-97-06
A-98-06
Citation: 2006 FCA 131
Present: EVANS J.A.
BETWEEN:
A-97-06
ROGER OBONSAWIN,
LJUBA IRWIN AS REPRESENTATIVES OF THE O.I. GROUP
OF COMPANIES
Appellants
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA AS REPRESENTED BY THE MINISTER OF
NATIONAL REVENUE
Respondent (Defendant)
and
MARGARET HORN
Respondent
A-98-06
ROGER OBONSAWIN,
LJUBA IRWIN AS REPRESENTATIVES OF THE O.I. GROUP
OF COMPANIES
Appellants
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA AS REPRESENTED BY THE MINISTER OF
NATIONAL REVENUE
Respondent (Defendant)
and
SANDRA WILLIAMS
Respondent
Heard at Ottawa, Ontario, on March 30, 2006.
Order delivered at Ottawa, Ontario, on March 31, 2006.
REASONS FOR ORDER BY: EVANS J.A.
Date: 20060331
Dockets: A-97-06
A-98-06
Citation: 2006 FCA 131
Present: EVANS J.A.
BETWEEN:
A-97-06
ROGER OBONSAWIN,
LJUBA IRWIN AS REPRESENTATIVES OF THE O.I. GROUP
OF COMPANIES
Appellants
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA AS REPRESENTED BY THE MINISTER OF
NATIONAL REVENUE
Respondent (Defendant)
and
MARGARET HORN
Respondent
A-98-06
ROGER OBONSAWIN,
LJUBA IRWIN AS REPRESENTATIVES OF THE O.I. GROUP
OF COMPANIES
Appellants
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA AS REPRESENTED BY THE MINISTER OF
NATIONAL REVENUE
Respondent (Defendant)
and
SANDRA WILLIAMS
Respondent
REASONS FOR ORDER
EVANS J.A.
[1] Roger Obonsawin has brought two motions. The first is to stay an order of Lutfy C.J. of the Federal Court (2006 FCT 281) requiring Mr Obonsawin to comply with an order of Hugessen J., dated January 6, 2006. The order requires Mr Obonsawin to produce, without editing, financial statements of the O.I. Group of Companies, and the source documents from which they were compiled, for the years ended January 31, 1993-1996 inclusive. Mr Obonsawin has appealed to this Court against the order of the Chief Justice and requests a stay pending the disposition of his appeal.
[2] Mr Obonsawin's second motion is to expedite the hearing of the appeal.
[3] The motions arise from actions by Sandra Williams and Margaret Horn against Her Majesty the Queen for, among other things, a declaration that the salary paid to them by the O.I. Group of Companies is exempt from provincial and federal tax by virtue of section 87 of the Indian Act, R.S.C. 1985, c. I-5. The trial of these actions is scheduled to commence on Monday April, 3, 2006, and to last for two weeks. However, the plaintiffs have recently changed solicitors and their new solicitors will be moving for an adjournment to enable them to prepare for trial. Counsel for the Crown advised me that, despite the history of delay in this matter, he would not oppose an adjournment.
[4] In connection with these actions, the Crown obtained an order requiring Mr Obonsawin to produce documents pursuant to rule 233 of the Federal Courts Rules, which permits the Court to order production by a third party, in this case, Mr Obonsawin. It is conceded that Mr Obonsawin is not yet in a position to produce all the documents covered by the order for production. The issue in dispute between the Crown and Mr Obonsawin is whether the order for production issued by Hugessen J. permits him to "white out" from the documents that he has been ordered to produce the names of the organizations with which O.I. employees are placed. In the decision under appeal, Lutfy C. J. held that Mr Obansawin must produce the documents in their original, unedited form.
[5] It is common ground that the grant of a stay is governed by the three-prong test in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. After considering the thorough submissions of counsel, I have concluded that a stay of the order of Lutfy C.J. should be granted, pending this Court's disposition of the appeal against that order.
[6] I am satisfied that the grounds of appeal advanced on behalf of Mr Obonsawin do not render the appeal "frivolous or vexatious" (Bisaillon v. Canada (1999), 251 N.R. 225 (F.C.A.) at para. 29), particularly given the privacy interests of Mr Obonsawin, a third party to the litigation (at least in the formal sense) and of the organizations in question. Moreover, disclosure of the names of the organizations would partly deprive Mr Obonsawin of the benefits of his appeal, should he be successful. The express confidentiality undertaking offered by counsel for the Crown would provide only partial protection against the invasion of privacy that would be sustained if Mr Obonsawin was required to disclose prior to the disposition of the appeal.
[7] As for the balance of convenience, I am persuaded that, if the Crown succeeds in the appeal, any harm that it would suffer as a result of being delayed in obtaining the unedited documents is outweighed by the harm flowing from the forced disclosure of the names of the organizations if Mr Obonsawin wins the appeal. In reaching this conclusion, I have taken into account the fact that counsel for Ms Williams and Ms Horn intend to request an adjournment of the trial.
[8] For these reasons, Mr Obonsawin's motion for a stay is granted, subject to the conditions contained in the order.
[9] Mr Obonsawin's motion to expedite the appeal was not opposed. Indeed, counsel for the Crown undertook to co-operate fully in ensuring that it could be heard at the earliest convenient dare. Accordingly, I shall grant the motion and the appeal will be heard at Toronto in the afternoon of June 20, 2006, one of the dates when all counsel advised me that they were available. The parties will follow the pre-hearing timetable set out in the order.
"John M. Evans"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-97-06
APPEAL FROM A JUDGMENT OR AN ORDER OF THE FEDERAL COURT DATED MARCH 2, 2006, FEDERAL COURT FILE NO. T-2241-95
DOCKET: A-98-06
APPEAL FROM A JUDGMENT OR AN ORDER OF THE FEDERAL COURT DATED MARCH 2, 2006, FEDERAL COURT FILE NO. T-2242-95
STYLE OF CAUSE: ROGER OBONSAWIN ET AL. v. HER MAJESTY THE QUEEN AS REPRESENTED BY THE MINISTER OF NATIONAL REVENUE ET AL.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 30, 006
REASONS FOR JUDGMENT BY: Evans J.A.
DATED: March 31, 2006
APPEARANCES:
Mr. G. James Fyshe for the Appellant
Mr. John Shipley for the Respondent Minister
Mr. Maxime Faille for the Respondent Margaret Horne
Mr. Graham S. Ragan
SOLICITORS OF RECORD:
Fyshe McMahon LLP for the Appellant
Hamilton, Ontario
John H. Sims, Q.C. for the Respondent Minister
Deputy Attorney General of Canada
Gowling Lafleur Henderson LLP for the Respondent Margaret Horne
Ottawa, Ontario
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