2435-4771 Québec Inc. v. R., [1996] 2 CTC 275

Nadon J.: — By application the Crown in right of Canada is asking this Court to convict Bertrand Fortin (“Mr. Fortin”) of contempt of court.

The relevant facts are as follows.

On June 22, 1993 a certificate having the effect of a judgment was entered in the record of this Court, certifying that 2435-4771 Québec Inc. (The “debtor”) was indebted to the Minister of National Revenue for tax arrears amounting to $19,857.02 plus interest compounded daily for the period from May 12, 1993 to the date of payment.

On August 31, 1993, my brother Pinard J. Made an order authorizing the Crown in right of Canada to examine Mr. Fortin after judgment as the representative of the debtor, on a date to be set by the Court Administrator. On September 20, 1993, Michelle Lamy was appointed examiner by the Administrator of this Court. On September 28, 1993, a summons was issued setting Mr. Fortin’s examination down for October 19, 1993. An affidavit was entered in the record of the Court indicating the service on Mr. Fortin of the order of August 31, 1993, the appointment of September 20, 1993 and the summons of September 28, 1993. As Mr. Fortin failed to appear for his examination on October 19, 1993, Miss Lamy entered a note in the record confirming his absence.

On January 10, 1994, my brother Noël J. Granted an ex parte application by the Crown in right of Canada for a bench warrant against Mr. Fortin. On January 20, 1994, a bench warrant was issued to an officer of the R.C.M.P. setting Mr. Fortin’s examination down for January 14, 1994 in Montréal. On January 12, 1994, the Administrator of this Court appointed Miss Lamy as examiner for the examination to be held on January 14, 1994. Mr. Fortin once again failed to appear for his examination and, on January 17, 1994, Miss Lamy entered a note in the record confirming that Mr. Fortin was absent. The note filed by Miss Lamy states that the R.C.M.P. was unable to execute the bench warrant issued against Mr. Fortin.

On November 18, 1994, Wetson J. of this Court granted an application filed by the Crown in right of Canada to examine Bertrand Fortin after judgment in Montréal on December 1, 1994. An affidavit entered in the record of the Court on November 29, 1994 states that Wetson J.’s order was served on Mr. Fortin.

On November 23, 1994, the Administrator of this Court appointed Miss Lamy as examiner for the examination set down for December 1, 1994. For the second time, Mr. Fortin failed to appear for the examination arranged by this Court. On December 2, 1994 Miss Lamy entered a note in the record confirming the fact that Mr. Fortin was not present for his examination.

On February 14, 1995, McGillis J. Issued a show cause order under Rule 355(4) of the Rules of this Court, directing Mr. Fortin to appear before this Court on March 27, 1995 to hear proof of the acts with which he was charged and to urge any grounds of defence that he might have.

On March 27, 1995,1 adjourned the hearing on the show cause order to April 3, 1995 as, despite the affidavit of service in the record, I was not persuaded that Mr. Fortin had been served in accordance with the Rules. On March 27, 1995, Mr. Fortin was not present. Unfortunately, it appears that the Registrar failed to mention this fact in the transcript at the hearing of March 27, 1995.

On April 3, 1995, my brother Denault J., for various reasons, set down a new hearing for April 24, 1995 and directed Mr. Fortin to appear in Court on that date. Denault J., in fact, issued a new show cause order.

On April 24, 1995, the Crown in right of Canada told the Court that it had not been able to serve Denault J.’s order dated April 3, 1995. Accordingly, the Crown in right of Canada asked the Court to adjourn the hearing to May 10, 1995. On May 10, 1995, Mr. Fortin finally appeared in this Court.

At the hearing the Crown in right of Canada called a witness, Daniel Rouzier, a bailiff in Montréal. Mr. Rouzier testified that he had himself made all the services on Mr. Fortin in this matter since November 17, 1994. Mr. Fortin admitted in this Court that the Court’s orders had been served on him. Mr. Fortin further admitted that he had failed to comply with the said orders without a valid reason. Accordingly, in may opinion, the Crown has discharged its burden of showing beyond any reasonable doubt that Mr. Fortin committed contempt of court. Section 35591) and (2) of the Rules of this Court states the following:

Rule 355. (1) Anyone is guilty of contempt of court who disobeys any process or order of the Court or a judge thereof, or who acts in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the Court. In particular, any officer of justice who fails to do his duty, and any sheriff or bailiff who does not execute a writ forthwith or does not make a return thereof or, in executing it, infringes any rule the violation whereof renders him liable to a penalty, is guilty of contempt of court.

(2) Except where otherwise provided, anyone who is guilty of contempt of court is liable to a fine, which in the case of an individual shall not exceed $5,000, or to imprisonment for a period not exceeding one year. Imprisonment, and in the case of a corporation a fine, for refusal to obey any process or order may be repeatedly inflicted until the person condemned obeys.

This rule provides for the imposition of a maximum fine of $5,000 or maximum imprisonment of one year in the case of an individual.

In Morin v. Abatteurs Jacques Élément (1993), 61 F.T.R. 266, Denault J. stated the following, at pages 270 and 271, regarding the imposition of a sentence following a conviction for contempt of court:

[11] In the imposition of sentence for a contempt of court, it must first be taken into account that the rights of the applicants and the orderly administration of justice have been impaired. The fine or penalty must accordingly be “appropriate to indicate the severity of the law and yet sufficiently moderate to show the temperance of justice” (Cutter (Canada) Ltd. v. Baxter Travenol Laboratories, [1987] 2 F.C. 557, 81 N.R. 220). It should be noted that cases of repeat offenders are rare and must be penalized accordingly.

In the case at bar Mr. Fortin failed to appear for examination twice. I further note that Noël J. Issued a bench warrant against Mr. Fortin on January 10, 1994 but it was impossible to execute that warrant. In this Court, Mr. Fortin admitted that he could not justify his repeated absences in any way.

In Morin, supra, Denault J. Clearly indicated that the Court should apply two tests, namely the injury suffered by the plaintiff and the impair- ment of the orderly administration of justice. In her submission, Mrs. Beaumont, counsel for the Crown, asked the Court to impose a fine of $2,000 plus costs on Mr. Fortin. Should Mr. Fortin fail to pay these amounts within thirty days of the judgment to be rendered, the Crown asks the Court to order that Mr. Fortin be incarcerated for thirty days.

The evidence submitted by the Crown in support of its application is not in dispute. Mr. Fortin has indeed refused to obey orders of this Court since October 10, 1993. As I have already indicated, Mr. Fortin failed to appear twice. On account of Mr. Fortin’s failure to appear twice. On account of Mr. Fortin’s failure to obey the orders of this Court, the representatives of the Crown have been obliged to spend time and money trying to obtain Mr. Fortin’s testimony regarding the debtor’s debt. Nineteen months went by before Mr. Fortin decided to appear to hear proof of the acts alleged against him by the Crown. Needless to say, Mr. Fortin’s was not examined. At the hearing , Mr. Fortin was not in any way able to justify his absences except to say that he should have been there.

On this evidence, I consider that Mr. Fortin should be ordered to pay fine of $1,500 plus the Crown’s costs, which I set at $700. If Mr. Fortin fails to pay these sums within forty-five days of the date of this order, the plaintiff may file an application to have Mr. Fortin imprisoned for a maximum period of fifteen days.

Application allowed.