McKeown
J.:
—
The
plaintiff,
Mr.
Del
Zotto,
brings
two
motions.
One
is
to
amend
the
statement
of
claim
pursuant
to
Rule
420.
The
second
is
to
require
the
defendant
to
perform
a
new
search
for
documents
which
may
be
relevant
to
issues
in
this
action
and
requiring
the
defence
to
produce
a
new
affidavit
of
documents
reflecting
the
results
of
that
search,
including
the
full
list
of
all
documents
which
are
relevant
but
which
have
been
lost
or
destroyed
and/or
are
privileged
pursuant
to
Rule
448.
The
applicant,
Mr.
Noble,
also
brings
two
motions.
One
is
seeking
to
convert
the
application
for
judicial
review
into
an
action
pursuant
to
section
18.4
of
the
Federal
Court
Act,
R.S.C.
1985,
c.
F-7,
as
amended.
The
second
motion,
which
is
contingent
on
the
success
of
the
first,
is
for
the
consolidation
of
the
two
actions.
Both
the
plaintiff
and
the
applicant
have
undertaken
that,
if
these
motions
are
granted,
the
moving
parties
will
request
no
change
to
my
procedural
orders
made
on
September
21,
1995.
The
trial
will
proceed
as
scheduled
on
September
3,
1996,
and
both
the
action
and
the
application
for
judicial
review
or,
if
converted
into
an
action,
both
actions
will
be
ready
to
proceed
by
April
15,
1996.
I
will
deal
with
the
plaintiff’s
motion
to
amend
the
statement
of
claim
first.
In
order
to
review
the
proposed
amendments,
a
brief
review
of
this
action
and
Mr.
Noble’s
application
is
required.
After
the
inquiry
was
set
up
under
section
231.4
of
the
Income
Tax
Act
(Canada),
R.S.C.
1986,
c.
6,
s.
121,
the
applicant,
Mr.
Noble,
was
subpoenaed
on
April
21,
1993.
Two
weeks
later
he
issued
an
originating
notice
of
motion
requesting
a
stay
of
the
proceedings
and
an
application
to
quash
the
subpoena.
The
two
grounds
are
set
out
in
paragraphs
3
and
4
of
the
originating
notice
of
motion
which
read
as
follows:
3.
Section
231.4
of
the
Income
Tax
Act
(Canada),
which
is
the
statutory
basis
for
the
issuance
of
the
said
subpoena,
is
contrary
to
sections
7
and
8
of
the
Charter
of
Rights
and
Freedoms
and,
therefore,
of
no
force
or
effect,
in
that
it
authorizes
unreasonable
searches
and
seizures
and
purports
to
authorize
the
state
to
compel
citizens
to
furnish
potentially
incriminating
evidence
against
themselves;
4.
In
any
event,
even
if
section
231.4
of
the
Income
Tax
Act
(Canada)
is
not
per
se
and
in
its
entirety
constitutionally
invalid,
its
operation
in
the
particular
circumstances
relating
to
the
state’s
attempt
to
compel
the
applicant
to
testify
at
the
said
inquiry
is
constitutionally
invalid;
It
may
be
seen
from
these
two
paragraphs
that
Mr.
Noble
was
attacking
both
the
constitutional
validity
of
section
231.4
in
a
general
sense
and
in
its
application
in
this
specific
inquiry.
Mr.
Del
Zotto
then
issued
a
statement
of
claim
on
August
17,
1993
against
the
same
three
parties
who
were
the
respondents
in
Mr.
Noble’s
motion,
i.e.
Minister
of
National
Revenue,
John
Edward
Thompson
and
D.
Reilly
Watson,
and
added
a
fourth
party,
Her
Majesty
the
Queen
in
Right
of
Canada.
In
the
claim,
inter
alia,
he
sought
in
paragraph
20(c)
a
declaration
that
section
231.4
of
the
Income
Tax
Act
is
contrary
to
sections
7
and
8
of
the
Charter
of
Rights
and
Freedoms
(the
Charter),
is
not
justified
by
section
1
of
the
Charter,
and
thus
is
of
no
force
and
effect.
Additionally
Mr.
Del
Zotto
sought
in
paragraph
20(d)
a
declaration
that
section
5
of
the
Canada
Evidence
Act,
R.S.C.
1985,
c.
C-5,
is
contrary
to
section
7
of
the
Charter,
is
not
justified
by
section
1
of
the
Charter,
and
thus,
is
of
no
force
and
effect.
The
applicant
and
the
plaintiff
then
sought
an
order
from
the
Associate
Senior
Prothonotary
for
consolidation
of
the
judicial
review
matter
and
the
action.
At
the
same
time,
the
Crown
brought
a
motion
seeking
to
strike
out
Mr.
Del
Zotto’s
claim
against
the
Minister
of
National
Revenue.
The
Associate
Senior
Prothonotary
refused
to
permit
consolidation
on
January
9,
1995.
The
Associate
Senior
Prothonotary
stated
with
respect
to
consolidation:
With
regard
to
the
matter
of
consolidation,
there
is
no
provision
in
the
Rules
of
this
Court
for
consolidation
of
actions
and
consolidation
has
frequently
been
refused.
The
Court
has
very
seldom
taken
advantage
of
Rules
to
analogize
to
provincial
rules
allowing
consolidation.
In
addition,
the
proceedings
sought
to
be
consolidated
here
are
not
both
actions.
One
was
commenced
with
a
statement
of
claim
and
the
other
by
a
notice
of
motion.
The
parties
are
not
identical.
It
is
my
view
that
consolidation
should
not
be
ordered.
A
single
point
of
law
will
determine
both
proceedings
so
there
is
obviously
an
advantage
that
the
matters
be
determined
by
the
same
Judge.
This
Court
has
frequently
ordered
cases
to
be
tried
together
or
one
after
the
other,
as
the
Judge
at
trial
may
determine.
Because
of
the
single
point
of
law
and
the
single
investigation
involved,
it
might
have
simplified
matters
to
stay
one
proceeding
and
allow
the
moving
party
in
the
stayed
proceeding
to
intervene
in
the
continuing
proceeding.
Thus
all
would
have
had
input
in
the
same
proceeding
in
the
decision
as
to
constitutionality.
That
relief
was
not
asked
for
and
cannot
be
granted
in
this
motion.
It
may
well
be
that
consolidation
as
such
having
been
refused,
the
parties
will
be
able
by
agreement
to
find
a
way
of
simplifying
proceedings,
which
presumably
will
be
further
complicated
by
section
57
of
the
Federal
Court
Act.
He
dismissed
the
motion
for
consolidation
and
stated:
It
is
ordered
that
this
matter
be
heard
together
with
file
T-992-93,
Herbert
Noble
v.
Minister
of
National
Revenue,
or
immediately
thereafter
as
the
judge
at
hearing
may
decide.
Provided
one
of
the
parties
may,
on
consent
of
all
of
the
parties
to
both
proceedings,
move
to
stay
this
proceeding
or
the
Noble
proceeding
and
for
an
order
granting
the
prosecuting
party
in
the
stayed
proceeding
the
right
to
intervene
in
the
other
proceeding
with
leave
to
present
argument
on
the
constitutional
issue....
Also
on
January
9,
1995,
the
Associate
Senior
Prothonotary
granted
the
motion
to
strike
the
claim
as
against
the
Minister
of
National
Revenue.
He
stated
at
page
2
of
his
reasons:
No
claim
is
made
against
the
Minister
of
National
Revenue.
While
it
might
be
that
if
he
had
not
been
made
a
party
he
could
have
sought
successfully
to
be
added
as
either
a
defendant
or
an
intervenor
because
some
interest
of
his
was
in
issue.
Even
if
an
interest
of
the
Minister
is
in
issue
here,
he
has
not
sought
to
intervene
to
protect
his
interest.
In
fact
he
has
sought
to
be
removed
from
the
action.
Because
the
plaintiff
makes
no
claim
against
the
Minister
and
the
Minister
does
not
seek
to
be
involved
in
the
action,
the
Minister
will
be
removed
as
a
party.
On
November
26,
1993,
I
stayed
the
order
of
the
Tax
Court
which
purported
to
appoint
D.
Reilly
Watson
as
hearing
officer
for
an
inquiry
into
the
affairs
of
Angelo
Del
Zotto
and
also
restrained
D.
Reilly
Watson
from
acting
as
hearing
officer
at
the
inquiry
and
John
Edward
Thompson
from
conducting
the
inquiry
until
30
days
after
the
final
determination
of
the
Noble
and
Del
Zotto
proceedings.
It
was
submitted
by
counsel
for
the
plaintiff
that
the
specific
inquiry
was
already
being
attacked
by
reason
of
certain
paragraphs
in
the
statement
of
claim.
I
cannot
accept
that
the
paragraphs
(referred
to
by
the
plaintiff)
in
the
statement
of
claim
amount
to
an
attack
on
the
specific
inquiry.
More
importantly
no
remedy
was
sought
in
respect
of
the
specific
inquiry.
In
the
winter
of
1995,
the
Supreme
Court
of
Canada
came
out
with
a
series
of
cases
which
made
it
clear
that
in
deciding
whether
an
inquiry
was
a
valid
inquiry,
one
must
look
at
the
purpose
of
the
inquiry.
At
the
discovery
in
August
1995
counsel
for
the
respondent
refused
to
permit
his
client(s)
to
respond
to
questions
which
related
to
the
specific
purpose
of
this
inquiry.
It
is
because
of
counsel’s
refusal
to
allow
these
questions
that
the
applicant
now
seeks
to
have
the
statement
of
claim
amended.
Normally,
amendments
which
are
necessary
for
the
purpose
of
determining
the
real
questioning
controversy
between
the
parties
are
allowed.
Rule
420
reads
as
follows:
420(1)
The
Court
may,
on
such
terms,
if
any,
as
seem
just,
at
any
stage
of
an
action,
allow
a
party
to
amend
his
pleadings,
and
all
such
amendments
shall
be
made
as
may
be
necessary
for
the
purpose
of
determining
the
real
question
or
questions
in
controversy
between
the
parties.
(2)
No
amendment
shall
be
allowed
under
this
Rule
(a)
except
upon
terms
designated
to
protect
all
parties
so
far
as
discovery
and
preparation
for
trial
are
concerned;
and
(b)
during
or
after
trial,
except
to
make
the
pleadings
accord
with
the
issues
on
which
all
parties
went
to
trial
or
on
terms
that
there
be
a
new
trial,
or
that
the
other
parties
otherwise
be
given
an
opportunity
for
such
discovery
and
preparation
for
trial
as
may
be
necessary
to
meet
the
new
or
amended
allegations.
There
cannot
be
any
doubt
at
this
stage
of
the
proceedings
that
the
purpose
of
this
inquiry
is
one
of
the
real
questions
in
controversy
between
the
parties.
However,
here
I
am
faced
with
the
situation
that
two
of
the
respondents
in
the
action
and
the
judicial
review
are
the
same,
but
the
third
party
is
different.
Her
Majesty
the
Queen
in
Right
of
Canada
is
the
defendant
in
the
action
and
the
Minister
of
National
Revenue
is
one
of
the
respondents
in
the
judicial
review.
This
gives
rise
to
a
problem
in
this
action
since
the
Minister
of
National
Revenue
will
be
a
necessary
party
to
Mr.
Del
Zotto’s
action
if
in
addition
to
the
general
attack
on
section
231.4
of
the
Income
Tax
Act,
the
application
of
that
section
in
this
particular
case
is
to
be
attacked.
The
difficulty
arises
because
the
Associate
Senior
Prothonotary
struck
the
statement
of
claim
as
against
the
Minister
of
National
Revenue
in
January,
this
year.
The
plaintiff
opposed
the
striking
out
of
the
Minister
of
National
Revenue
but
did
not
appeal
the
Associate
Senior
Prothonotary’s
decision.
However,
the
decision
of
the
Associate
Senior
Prothonotary
predates
the
decision
of
the
Supreme
Court
of
Canada
in
British
Columbia
(Securities
Commission)
v.
Branch,
[1995]
2
S.C.R.
3,
180
N.R.
241,
97
C.C.C.
(3rd)
505
(S.C.C.)
and
in
R.
v.
S.
(R.J.),
[1995]
1
S.C.R.
451,
21
O.R.
(3d)
797,
96
C.C.C.
(3rd)
1
(S.C.C.).
In
my
view,
it
would
be
unfair
to
the
plaintiff
to
refuse
an
amendment
which
was
designed
to
get
at
the
real
question
in
issue
in
this
matter
based
on
a
prothonotary’s
decision
which
was
made
in
another
context
without
the
knowledge
that
the
purpose
of
the
inquiry
in
this
action
would
be
a
very
important
factor.
I
note
the
judgment
of
Cullen
J.
in
Newfoundland
Processing
Ltd.
v.
“South
Angela”
(The),
[1989]
3
F.C.
398,
30
F.T.R.
307,
at
page
400
(F.T.R.
308)
where
he
stated:
It
is
also
not
open
to
the
plaintiff
under
Rule
420
to
add
a
defendant
by
way
of
joinder.
Counsel
for
the
plaintiff
sought
this
relief
in
argument
but
had
not
filed
any
motion
to
that
effect.
Whether
it
is
open
to
the
plaintiff
to
move
a
further
motion
to
add
a
party
or
parties
by
way
of
joinder
or
to
bring
another
action
is
something
that
may
be
considered
appropriate
by
the
plaintiff
and
determined
before
another
judge.
The
plaintiff
is
not
prejudiced
if
it
seeks
these
alternatives.
Counsel
for
the
respondents
argued
that
in
addition
to
there
being
no
legal
basis
for
making
the
amendments,
this
is
an
amendment
which
cannot
be
made
since
costs
cannot
remove
the
resultant
prejudice
to
the
respondent.
In
Canderel
Ltd.
v.
R.
(sub
nom.
Canderel
Ltd.
v.
Canada),
[1993]
2
C.T.C.
213,
93
D.T.C.
5357,
[1994]
1
F.C.
3
(F.C.A.)
Décary
J.A.
summarized
the
problem
of
injustice
to
the
other
party
at
page
9
where
he
stated:
With
respect
to
amendments,
it
may
be
stated,
as
a
result
of
the
decisions
of
this
Court
in
Northwest
Airporter
Bus
Service
Ltd.
v.
The
Queen
and
Minister
of
Transport;
The
Queen
v.
Special
Risks
Holdings
Inc.;
Meyer
v.
Canada]
Glisic
v.
Canada
and
Francoeur
v.
Canada
and
of
the
decision
of
the
House
of
Lords
in
Ketteman
v.
Hansel
Properties
Ltd.
which
was
referred
to
in
Francoeur,
that
while
it
is
impossible
to
enumerate
all
the
factors
that
a
judge
must
take
into
consideration
in
determining
whether
it
is
just,
in
a
given
case,
to
authorize
an
amendment,
the
general
rule
is
that
an
amendment
should
be
allowed
at
any
stage
of
an
action
for
the
purpose
of
determining
the
real
questions
in
controversy
between
the
parties,
provided,
notably,
that
the
allowance
would
not
result
in
an
injustice
to
the
other
party
not
capable
of
being
compensated
by
an
award
of
costs
and
that
it
would
serve
the
interests
of
justice.
As
regards
injustice
to
the
other
party,
I
cannot
but
adopt,
as
Mahoney
J.A.
has
done
in
Meyer,
the
following
statement
by
Lord
Esher,
M.R.
in
Steward
v.
North
Metropolitan
Tramways
Co.
(1886),
16
Q.B.D.
556
(C.A.),
at
page
558:
There
is
no
injustice
if
the
other
side
can
be
compensated
by
costs;
but,
if
the
amendment
will
put
them
into
such
a
position
that
they
must
be
injured,
it
ought
not
to
be
made.
and
the
statement
immediately
following:
And
the
same
principle
was
expressed,
I
think
perhaps
somewhat
more
clearly,
by
Bowen
L.J.,
who
says
that
an
amendment
is
to
be
allowed
"whenever
you
can
put
the
parties
in
the
same
position
for
the
purposes
of
justice
that
they
were
in
at
the
time
when
the
slip
was
made."
To
apply
that
rule
to
the
present
case;
if
the
amendment
is
allowed
now,
will
the
plaintiff
be
in
the
same
position
as
if
the
defendants
had
pleaded
correctly
in
the
first
instance?
He
then
quotes
from
Bowman
J.T.C.C.
in
Leasing
Corp.
v.
R.
(sub
nom.
Continental
Bank
of
Canada
v.
Canada),
[1993]
1
C.T.C.
2306,
93
D.T.C.
298
(T.C.C.),
at
page
2310
(D.T.C.
12):
...I
prefer
to
put
the
matter
on
a
broader
basis:
whether
it
is
more
consonant
with
the
interests
of
justice
that
the
withdrawal
or
amendment
be
permitted
or
that
it
be
denied.
The
tests
mentioned
in
cases
in
other
courts
are
of
course
helpful
but
other
factors
should
also
be
emphasized,
including
the
timeliness
of
the
motion
to
amend
or
withdraw,
the
extent
to
which
the
proposed
amendments
would
delay
the
expeditious
trial
of
the
matter,
the
extent
to
which
a
position
taken
originally
by
one
party
has
led
another
party
to
follow
a
course
of
action
in
the
litigation
which
it
would
be
difficult
or
impossible
to
alter
and
whether
the
amendments
sought
will
facilitate
the
court’s
consideration
of
the
true
substance
of
the
dispute
on
its
merits.
No
single
factor
predominates
nor
is
its
presence
or
absence
necessarily
determinative.
All
must
be
assigned
their
proper
weight
in
the
context
of
the
particular
case.
Ultimately
it
boils
down
to
a
consideration
of
simple
fairness,
common
sense
and
the
interest
that
the
courts
have
that
justice
be
done.
Although
costs
could
not
remedy
the
unfairness
to
Her
Majesty
the
Queen
in
this
case,
in
my
view,
a
limited
removal
of
the
stay
with
respect
to
the
inquiry
would
be
an
adequate
solution
to
the
injustice
faced
by
Her
Majesty
the
Queen
with
an
amendment
at
this
stage.
This
limited
lifting
of
the
stay
will
fully
protect
Mr.
Noble
and
offers
protection
to
Mr.
Del
Zotto
from
any
form
of
self-incrimination.
I
recognize
there
is
a
danger
that
proceeding
with
the
inquiry
could
end
up
being
a
form
of
discovery
against
an
accused.
The
plaintiff
has
had
this
action
stayed
for
nearly
two
years
and
the
public
interest
as
represented
by
the
defendant
requires
that
the
matter
be
proceeded
with
expeditiously.
Although
all
the
parties
have
proceeded
in
good
faith
the
proceedings
have
been
made
more
procedurally
complex
by
the
failure
of
the
plaintiff
and
the
applicant
to
proceed
on
identical
basis.
As
a
result
of
this
failure,
the
defendants
and
respondents
are
faced
with
an
injustice
not
compensable
by
costs
if
this
amendment
is
allowed.
The
stay
will
be
removed
against
the
order
of
the
Tax
Court
and
the
restraint
is
lifted
against
D.
Reilly
Watson
from
acting
as
hearing
officer
and
John
Edward
Thompson
from
conducting
the
inquiry
except
that
neither
Messrs.
Noble
or
Del
Zotto
may
be
subpoenaed
or
otherwise
required
to
provide
evidence
until
30
days
after
this
action
is
determined
or
settled
on
consent.
The
schedule
as
drawn
up
two
weeks
ago
will
be
adhered
to
notwithstanding
the
amendments.
Her
Majesty
the
Queen
is
still
entitled
to
have
the
action
proceed
on
an
expedited
basis
on
September
3,
1996,
as
is
provided
in
my
order
dated
September
21,
1995.
Before
determining
the
extent
of
the
amendments
that
are
to
be
allowed,
I
must
consider
the
respondent’s
argument
with
respect
to
the
proposed
amendments
to
paragraph
15
of
the
statement
of
claim.
As
it
is
legal
argument,
I
am
in
agreement
with
the
respondent
that
such
argument
cannot
be
included
in
a
statement
of
claim
and
therefore,
the
two
paragraphs
that
were
sought
to
be
added
to
paragraph
15
shall
be
deleted.
Otherwise
the
remaining
amendments
are
permitted.
I
now
turn
to
the
issue
of
the
Noble
motion
wherein
Mr.
Noble
seeks
to
have
his
application
for
judicial
review
converted
into
an
action.
It
is
important
to
note
that
this
originating
notice
of
motion
has
been
ready
to
be
heard
since
the
summer
of
1993
but
has
not
been
heard
because
the
Associate
Senior
Prothonotary,
in
refusing
Noble’s
motion
for
consolidation,
ordered
the
application
and
the
action
to
be
heard
together
or
immediately
thereafter
as
the
Trial
Judge
may
decide.
The
motion
was
brought
in
the
fall
of
1993
but
a
decision
was
not
obtained
until
January
9,
1995.
Accordingly
and
subsequent
to
that
decision,
the
two
matters
were
to
be
heard
together.
The
Del
Zotto
matter
was
not
and
is
not
ready
for
trial
at
the
present
time
and
accordingly,
this
matter
has
not
been
finalized.
Section
18.4
of
the
Federal
Court
Act
gives
me
discretion
to
convert
this
motion
into
an
action.
Counsel
for
the
applicant
stated
that
if
the
amendments
were
granted
in
the
Del
Zotto
matter
and
this
matter
remained
an
application,
Mr.
Noble
would
not
be
able
to
rely
on
the
evidence
obtained
as
a
result
of
the
amendments.
This
could
lead
to
inconsistent
results
in
the
two
matters.
Since
Mr.
Noble’s
application
is
not
an
action,
he
has
no
right
to
discovery
and
accordingly,
no
right
to
use
certain
documents
uncovered
by
the
plaintiff
in
his
action.
In
my
view,
there
are
a
number
of
factors
in
this
case
which
favour
the
conversion
of
this
application
for
judicial
review
into
an
action.
First,
the
judicial
review
is
to
be
heard
at
the
same
time
as
the
Del
Zotto
action.
Second,
the
trial
date
for
the
Del
Zotto
action
will
not
be
delayed
by
converting
this
motion
into
an
action.
Third,
Mr.
Noble
has
alleged
from
the
start
that
the
inquiry
is
invalid
in
this
specific
instance.
Finally,
the
credibility
of
the
representative
of
the
Minister
of
National
Revenue
may
be
an
important
factor
at
the
trial
and
if
Mr.
Noble
is
restricted
to
his
original
motion,
he
will
not
have
an
opportunity
to
explore
the
credibility
of
the
representative
of
the
respondent.
As
Pinard
J.
stated
in
Edwards
v.
Canada
(Minister
of
Agriculture)
(1992),
53
F.T.R.
265
(F.C.T.D.),
the
Supreme
Court
of
Canada
has
stated
the
importance
of
not
having
Charter
decisions
made
in
a
factual
vacuum.
In
Noble’s
case,
many
factual
and
legal
issues
must
be
considered
and
determined
by
the
Court,
including
Charter
issues.
These
issues
are
extremely
complex
and
are
not
suitable
for
determination
on
a
motion
supported
by
affidavits
as
opposed
to
viva
voce
evidence.
It
should
be
noted
that
Mr.
Noble
moved
promptly
on
this
matter.
When
his
counsel
showed
up
at
the
discovery
of
Her
Majesty
the
Queen’s
representative
in
August,
he
was
refused
the
right
to
participate
because
his
client
was
not
a
part
to
the
Del
Zotto
action.
Mr.
Noble
promptly
brought
this
motion
to
remedy
this
situation.
If
Mr.
Noble
is
permitted
to
convert
his
motion
into
an
action,
there
will
be
no
delay
in
reaching
the
trial
since
the
schedule
will
be
adhered
to
as
Mr.
Noble
has
undertaken
to
comply
with
the
schedule
and
the
conditions
laid
out
therein.
In
Drapeau
v.
Canada
(Minister
of
National
Defence)
(1995),
179
N.R.
398
(F.C.A.)
and
in
Maclnnis
v.
Canada
(Attorney-General),
[1994]
2
F.C.
464,
113
D.L.R.
(4th)
529,
166
N.R.
57
(F.C.A.)
the
Federal
Court
of
Appeal
has
stated
that,
in
determining
whether
to
convert
a
judicial
review
into
an
action,
consideration
must
be
given
to:
(1)
the
undesirability
of
multiple
proceedings;
(2)
the
desirability
of
avoiding
unnecessary
costs
and
delays;
(3)
whether
the
particular
issues
involved
require
an
assessment
of
demeanour
and
credibility
of
witnesses;
and
(4)
the
need
for
the
Court
to
have
a
full
grasp
of
all
the
evidence.
Since
the
applicant
has
met
each
of
these
considerations
to
my
satisfaction,
I
order
that
the
judicial
review
be
converted
into
an
action.
I
must
now
consider
the
question
of
the
consolidation
of
the
two
actions.
Rule
1715
of
the
Federal
Court
Rules
reads
as
follows:
1715(1)
Two
or
more
persons
may
be
joined
together
in
one
action
as
plaintiffs
or
as
defendants
with
the
leave
of
the
Court
or
where
(a)
if
separate
actions
were
brought
by
or
against
each
of
them,
as
the
case
may
be,
some
common
question
of
law
or
fact
would
arise
in
all
the
actions;
or
(b)
all
rights
to
relief
claimed
in
the
action
(whether
they
are
joint,
several
or
alternative)
are
in
respect
of
or
arise
out
of
the
same
fact,
matter
or
thing.
(2)
Where
the
plaintiff
in
any
action
claims
any
relief
to
which
any
other
person
is
entitled
jointly
with
him,
all
persons
so
entitled
shall,
subject
to
the
provisions
of
any
Act
and,
unless
the
Court
gives
leave
to
the
contrary,
be
made
parties
to
the
action
and
any
of
them
who
does
not
consent
to
being
joined
as
a
plaintiff
shall,
subject
to
any
order
made
by
the
Court
on
an
application
for
leave
under
paragraph
(1),
be
made
a
defendant.
Under
Rule
1715
I
am
entitled
to
add
the
Minister
of
National
Revenue
as
a
party
in
the
Del
Zotto
action
and
Her
Majesty
the
Queen
in
the
Noble
action
and
I
make
such
an
order.
I
note
that
motions
on
the
two
matters
have
always
been
heard
together.
To
date
every
order
issued
has
been
identical
in
the
two
cases.
The
two
counsel
for
Messrs.
Noble
and
Del
Zotto
work
with
a
high
degree
of
coordination
and
both
are
assisted
by
the
same
junior
counsel.
In
both
actions
the
parties
seek
the
same
relief.
Mr.
Noble
and
Mr.
Del
Zotto
both
wish
to
strike
section
231.4
of
the
Income
Tax
Act
either
generally
or
with
respect
to
these
actions
and
to
stop
the
inquiry.
The
style
of
cause
in
the
action
and
the
originating
notice
of
motion
have
been
used
together
on
the
front
page
of
recent
motions.
There
is
a
similarity
of
facts
in
both
cases
once
the
actions
are
joined.
If
the
actions
are
not
joined,
the
result
would
be
a
full
exposition
of
the
facts
in
the
Del
Zotto
action
but
very
restrictive
evidence
in
the
Noble
proceeding.
It
is
not
in
the
interest
of
justice
to
have
different
facts
in
the
two
cases.
There
is
a
basic
unfairness
to
Mr.
Noble
if
he
is
not
given
the
right
to
cross-examine
the
Crown
witnesses.
The
estimate
of
10
remaining
days
of
discovery
is
based
on
the
two
cases
being
consolidated.
I
order
the
two
actions
consolidated.
Finally,
I
turn
to
Mr.
Del
Zotto’s
motion
for
a
new
affidavit
of
documents.
Rule
448
sets
out
the
minimum
requirement
for
affidavits
of
documents
and
the
issues
here
relate
to
Rule
448:
448(2)
An
affidavit
of
documents
(Form
19)
shall
contain
(a)
separate
lists
and
sufficient
descriptions
of
all
documents
relevant
to
any
matter
in
issue
that
(ii)
are
or
were
in
the
possession,
power
or
control
of
the
party
and
for
which
privilege
is
claimed,
(iii)
were
but
are
no
longer
in
the
possession,
power
or
control
of
the
party
and
for
which
no
privilege
is
claimed,
and
The
plaintiff
alleges
that
there
were
only
15
documents
disclosed
in
the
affidavit
of
documents
and
that
another
five
documents
have
been
produced
since
that
time.
Also
no
documents
were
listed
in
the
Schedule
of
lost
documents
and
during
the
discoveries,
it
became
apparent
that
the
whole
file
had
been
destroyed
in
1994,
The
respondent
submitted
that
some
of
the
new
documents
produced
related
to
the
Tax
Operations
Manual
and
were
disclosed
as
a
result
of
my
reasons
dated
August
3,
1995.
Again
the
file
was
destroyed
prior
to
the
time
that
it
became
apparent
that
the
Tax
Operations
Manual
was
important.
Accordingly,
I
would
not
require
a
new
affidavit
of
documents
save
and
except
one
which
will
be
required
as
a
result
of
the
amendments
which
have
been
permitted
to
the
statement
of
claim
today.
If
there
are
any
other
categories
of
documents
that
have
not
been
produced,
this
order
is
made
without
prejudice
to
the
plaintiff
bringing
an
application
for
an
inclusion
of
a
further
category
of
documents
in
the
affidavit
of
documents.
Certain
documents
have
been
refused
to
the
plaintiff
on
discovery
because
they
were
not
relevant
to
the
action
as
previously
constituted.
In
light
of
the
amendments,
the
respondents
will
have
to
review
these
refusals
and
produce
these
documents,
subject,
of
course,
to
any
privilege
which
may
attach
to
any
of
the
documents.
I,
therefore,
order
a
further
affidavit
of
documents
to
be
produced
by
the
respondent
setting
out
all
documents
that
are
relevant
and
whether
such
documents
are
privileged.
Also,
any
documents
that
have
been
lost
or
destroyed
should
be
included
in
the
appropriate
schedule.
Such
affidavit
of
documents
should
be
produced
within
21
days
of
this
order.
Order
accordingly.
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