Docket: 2004-3561(IT)G
2004-3567(IT)G
2004-4573(IT)G
BETWEEN:
RONALD ROBERTSON and
ROGER SAUNDERS,
Appellants,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Motion
determined pursuant to Rule 69 of the
Tax Court of Canada Rules (General
Procedure)
By: The Honourable
Justice E.A. Bowie
Appearances:
|
Counsel
for the Appellants:
|
J.R.
Norman Boudreau
|
|
Counsel for the Respondent:
|
Gerald Chartier
|
____________________________________________________________________
ORDER
UPON MOTION of the appellants for an Order for an
adjournment of the hearing of the appeals scheduled for three consecutive
weeks, commencing on Monday, September 14, 2009, at Winnipeg,
Manitoba;
AND UPON having read the materials filed, and the written
submissions of both parties filed pursuant to Rule 69;
IT
IS ORDERED that the motion is dismissed, with costs of the motion to the respondent,
in any event, payable forthwith, which are fixed at $250.00.
Signed at Ottawa, Canada,
this 14th day of July 2009.
“E.A.
Bowie”
Citation: 2009 TCC 364
Date: 20090714
Docket: 2004-3561(IT)G
2004-3567(IT)G
2004-4573(IT)G
BETWEEN:
RONALD ROBERTSON and
ROGER SAUNDERS,
Appellants,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Bowie
J.
[1] The appellants
bring this motion seeking to adjourn the trial of this matter, and request that
the motion be disposed of in writing pursuant to Rule 69. The respondent
does not oppose the request that the motion be dealt with in writing, but does
oppose the motion to adjourn the trial. The appellants’ reason for seeking the
adjournment is to enable their counsel to retain and instruct an expert
witness, and to enable that witness to prepare the written statement of his
evidence that Rule 145 requires. Although the motion is brought
only in the appeal of Ronald Robertson I shall treat it as applying as
well to the appeal of Roger Saunders (Docket 2002‑4573(IT)G), as the
two appeals are set down to be tried together.
[2] The motion is
supported by an affidavit sworn by J. R. Norman Boudreau. Mr Boudreau is
counsel for the appellants. He signed the Notice of Motion, and he signed the
Written Representations in support of the motion. It is a long-established
principle, found not only in the case law but also in the Canadian Bar
Association Code of Professional Conduct, Chapter IX, Commentary 5, that
counsel should not appear as advocate and witness in the same cause. This rule
applies to evidence given by affidavit as well as orally: see Sherman
v. The Queen, I see no reason why it
should not apply equally to motions dealt with in writing as to those argued
orally. As the matter is of some urgency, and as there is nothing that is
contentious in the affidavit, I do not propose to reject the motion for that
reason, as I otherwise might
[3] These appeal,
and the related appeals of eight other appellants, were begun in 2004. The
appellants challenge the right of the Minister of National Revenue to assess them
for income tax in respect of their income which they earn from fishing. They
assert aboriginal and treaty rights to fish, free of the burden of taxation,
and it is as to this claim that the appellants wish to retain an additional
expert witness.
[4] On September 2,
2008, a case management teleconference was held to establish timelines for the
remaining pre-trial steps, and to fix a trial date. By agreement of the parties
the trial was fixed to take place at Winnipeg, commencing on Monday September 14, 2009. Three weeks
have been allotted for it. At the request of the appellants’ counsel, I
included in the Order resulting from that teleconference a provision that the
appellants were to deliver their expert witness report under Rule 145 to
the respondent by December 1, 2008, and respondent’s counsel was to advise the
appellants by January 5, 2009 whether the qualifications of the appellants’
witness to give opinion evidence would be challenged. The respondent’s expert
report was to be delivered by May 31, 2009. On December 1, 2008 Mr. Boudreau
provided the report and the resumé of the appellants’ expert witness, Mr.
Rarihokwats, to Mr. Chartier. On December 23, 2008 Mr. Chartier wrote to Mr.
Boudreau to advise that
“the
respondent intends to challenge Mr. Rarihokwats’ qualifications to give expert
testimony in this matter.”
On
January 12, 2009, Mr Boudreau wrote to Mr. Chartier inquiring upon what basis
Mr. Chartier intended to challenge Mr. Rarihokwats’ qualifications. This letter
received no reply. On April 28 the respondent delivered her expert report to
the appellant.
[5] It appears from
the affidavit material before me that Mr Boudreau took no steps to attempt to
find an alternate expert witness between receiving Mr. Chartier’s letter of
December 23, 2008 and the beginning of May 2009. The first person to whom he
spoke was too busy to be able to take the matter on, but suggested a Mr. Lytwyn.
Mr. Boudreau spoke to Mr. Lytwyn in late June, and he indicated that he would
be willing to give evidence, but that he could not prepare a written report
until December 1, 2009.
[6] Mr. Boudreau
first suggested to Mr. Chartier that he would be seeking to adjourn the trial
on May 29. At a case management teleconference held on June 19 he proposed the
adjournment, and I directed that any application to adjourn the trial should be
made by motion.
[7] Mr. Boudreau’s
argument for the adjournment is based on two propositions. The first is that to
deny the adjournment request would deny the appellants the opportunity to put
forward a complete answer to the case against them, and they would therefore be
prejudiced in their appeal. The second is that the evidence of Mr. Lytwyn
would be of benefit to the Court in deciding the matter.
[8] It is the
appellants who assert aboriginal and treaty rights in these cases, and it is
for the appellants to establish those rights. The appellants’ counsel has had
since 2004 to marshal the evidence to establish these rights. The need to call
expert evidence has been evident throughout. Until Mr. Rarihokwats’ qualifications
were called into question in December 2008 the appellants apparently were
satisfied that the evidence they proposed to lead was satisfactory. Nothing
substantive has changed as a result of Mr. Chartier’s letter of December 28.
Admissibility of the evidence is a matter to be decided by the trial judge when
the evidence is tendered. Neither counsel for the respondent nor I as a motions
judge can decide that the evidence of Mr. Rarihokwots is inadmissible.
[9] Counsel for the
appellants may have had some doubt about the qualification of Mr. Rarihokwots;
that would explain his desire to have the respondent take a position on the
matter eight months before the trial was to begin. If that was the case then he
should have started the search for another expert witness much earlier, rather
than wait until four months before the trial. As Sharlow J.A., speaking for a
unanimous Court, said in Superior Filter Recycling v. The Queen:
Generally,
once a matter is set down for hearing, the parties must be prepared to proceed
at the scheduled time.
Certainly
there are exceptions. Unforeseen events may make it impossible for one party or
the other to proceed on a predetermined trial date. In this case nothing has
changed since the date was set 10 months ago. Court resources are scarce and
expensive. They are not to be wasted by the adjournment of long trials unless
there is a compelling change in circumstances.
[10] I do not find any
merit in the suggestion that to deny the adjournment in this case will deprive
the trial judge of valuable evidence. Judges decide cases on the evidence that
the parties put before them. If an adjournment were to be granted every time a
party decided to look for another witness who might support his case then delay
would become the norm. This argument loses any force that it might otherwise
have when one considers that apparently even the appellants’ counsel does not
know, and will not know for some time, what opinion Mr. Lytwyn might actually
arrive at. In his letter that is Exhibit F to the affidavit in support of the
motion he gives no hint of an opinion on the subject, and he says specifically
that he would need to research the question in the Hudson’s Bay
Company Archives and the National Archives of Canada.
[11] For these reasons
the motion is dismissed. The respondent shall have costs of the motion in any
event, payable forthwith,
which I fix at $250.00.
Signed at Ottawa, Canada, this 14th day of July, 2009.
“E.A.
Bowie”
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