DUMOULIN,
J.:—By
a
notice
of
motion,
argued
in
Court
this
10th
day
of
March,
1971,
the
respondent
sought
to
obtain:
(a)
An
order
dismissing
the
appellant’s
action
on
the
grounds
of
inobservance
of
our
Rules
144,
i.e.
failure
to
comply
with
a
notice
for
production
of
documents,
and
128,
i.e.
for
want
of
prosecution.
(b)
In
the
event
the
Court
should
refuse
an
order
dismissing
the
appeal,
then,
for
an
order
dismissing
the
appeal,
then,
for
an
order
pursuant
to
Rule
96A
of
the
Exchequer
Court,
“requiring
the
Appellant
to
serve
on
the
Respondent
further
and
better
particulars
for
trial
in
respect
of
the
following
matters
contained
in
the
Notice
of
Appeal,
dated
the
29th
day
of
August,
1968’’.
Such
‘‘further
and
better
particulars’’
are
specified
as
wished
for
in
subparagraphs
1,
2,
3
and
4
of
paragraph
B
of
this
motion.
(c)
For
an
order
requiring
the
appellant
to
give
security
for
costs
under
Rule
266,
in
the
event
that
the
motion
for
the
dismissal
of
the
appeal
be
refused.
At
the
start
of
the
hearing,
respondent’s
learned
counsel,
Mr.
Rip,
declared
he
was
renouncing
the
obtention
of
an
order
for
dismissal
and
would
limit
his
requests
to
items
listed
in
subparagraphs
(b)
and
(c)
above.
To
appellant’s
allegation
in
paragraph
1
of
his
notice
of
appeal
that
he
‘‘was
at
all
material
times
an
ordained
Minister
in
good
standing
of
the
Union
of
Regular
Baptist
Churches
and
duly
authorized
under
the
laws
of
Quebec
to
keep
registers
of
civil
status’’,
respondent
opposes
a
complete
denial
expressed,
with
particular
emphasis,
in
paragraph
21
of
the
reply.
This
paragraph
states
that:
21.
The
appellant
was
not
a
member
of
the
clergy
or
of
a
religious
order
or
a
regular
Minister
of
a
religious
denomination,
and
was
not
in
charge
of
or
ministering
to
a
diocese,
parish
or
congregation
and
was
not
engaged
exclusively
in
fulltime
administrative
service
by
appointment
of
a
religious
order
or
religious
denomination;
and
therefore
may
not
deduct
in
computing
his
income
for
the
years
in
appeal
the
value
of
the
residence
or
other
living
accommodations
occupied
by
him
during
the
respective
years,
as
described
in
Section
11(1)
(q)
of
the
Income
Tax
Act.
More
significant
still
is
the
assertion
in
paragraph
27
of
respondent’s
reply
that
“
.
.
.
the
taxpayer
(rather
a
misnomer
when
predicated
upon
one
reproached
with
not
having
paid)
failed
to
file
with
the
Minister
his
returns
of
income
for
the
1955,
1956,
1957,
1958
and
1959
taxation
years.
.
.
.”
Martin’s
income
returns
for
taxation
years
1949
to
1954,
inclusive,
are
also
under
attack,
and
so
is
that
for
1960.
Under
the
circumstances,
the
Court
is
of
the
opinion
that
appellant,
in
compliance
with
Rule
96A(1)
should
produce
the
particulars
sought
in
this
motion,
within
30
days
of
this
date.
The
other
demand,
security
for
costs,
raises
the
moot
point
of
the
appellant
being
“ordinarily
resident
out
of
the
jurisdiction”
as
said
in
Rule
266(1)
(a).
In
his
affidavit,
Mr.
Gerard
Coulombe,
one
of
Martin’
S
counsel,
declares
that
:
During
the
months
of
June,
July
and
August,
1970,
the
appellant
resided
at
Dorion
from
Monday
to
Friday,
every
week.
During
the
rest
of
1970,
the
appellant
came
regularly
to
Dorion
about
once
a
month
for
a
period
of
several
days
to
discharge
various
religious
and
other
obligations.
~
Such:
averments,
obtained
from
the
apellant,
tend,
in
my
opinion,
to
prove
‘‘non-residence’’,
ordinarily
at
least,
more
than
anything
else.
Furthermore,
they
apply
to
one
only
of
the
21
years
under
review
and
avoid
the
direct
assertion
that
Martin
ordinarily
resides
in
the:jurisdiction.
The
Court
also
took
cognizance
of
another
affidavit
sworn
to
by
Howard
Buckman
of
Ottawa,
an
articled
student
at
law
employed
in
the
Tax
Litigation
Section
of
the
Department
of
Justice,
who
was
informed
by
Harold
Townson,
an
officer
of
the
Montreal
District
Office,
Department
of
National
Revenue,
of
the
undergoing
facts
in
paragraph
21
cited
hereunder:
21.
I
am
informed
by
Mr.
Harold
Townson,
an
officer
of
the
Montreal
District
Office,
Department
of
National
Revenue,
that
the
appellant,
and
verily
believe
that
Harold
George
Martin,
has
no
assets
or
property
in
Canada
and
resides
during
autumn
and
winter
months
in
Florida,
one
of
the
United
States
of
America
and
resides
during
the
summer
months
at
one
of
the
islands
known
as
the
Thousand
Islands
in
New
York,
one
of
the
United
States
of
America.
I
therefore
reach
the
conclusion
that
the
appellant
is
ordinarily
resident
out
of
the
jurisdiction,
in
the
meaning
of
Rule
266(1)
(a),
and
should
in
consequence
deposit
a
sum
of
$800
as
security
for
the
respondent’s
costs
within
a
delay
of
30
days
of
this
date.
Costs
of
this
motion
to
follow
the
issue
of
the
cause.
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