Docket: 2005-1974(IT)G
BETWEEN:
KATHRYN KOSSOW,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Motion heard on
common evidence with the Motions filed by the Respondent
in the Appeals of Roy Gould 2004-4449(IT)G, Roy
Gould 2006-2188(IT)G and
Guiseppe (Joe) Fiorante 2005-3091(IT)G by telephone conference call
on May 25, 2009 at Ottawa,
Canada
Before: The Honourable
Justice J.E. Hershfield
Appearances:
|
Counsel for the Appellant:
|
A.
Christina Tari
|
|
Counsel for the Respondent:
|
Lorraine Edinboro
|
____________________________________________________________________
ORDER
Having read the materials filed and heard
the submissions of counsel;
And for reasons set out in the
attached Reasons for Order;
IT IS ORDERED THAT:
1. Gilles Abrioux be examined on oath or
affirmation before the hearing of the appeal pursuant to section 119 of the Tax
Court of Canada Rules (General Procedure) (the “Rules”);
2. Sections 101 to 112 of the Rules shall
apply to the examination;
3. Such examination shall
be conducted at the Tax Court
of Canada
in Toronto,
Ontario on June 25, 2009 and
recorded on videotape using the facilities of the Court;
4. The evidence given at the examination be
common to this appeal and the appeals of Roy Gould 2004-4449(IT)G; Roy
Gould 2006-2188(IT)G and Guiseppe (Joe) Fiorante 2005-3091(IT)G (the
“Related Appeals”);
5. The appellants in the Related Appeals shall
be entitled to participate in the examination either in person or by videoconference
through the videoconferencing facilities available at the Court and the
appellants shall be entitled to receive a copy of transcripts, videotapes and
recordings of the examination. The cost of such copies shall be paid by the appellants;
6. The disbursement costs of the examination shall
be borne by the Respondent in the first instance subject to an award by the
trial judge of such costs;
7. Other costs of the examination shall be as
awarded by the trial judge; and
8. Costs of the motion shall, in accordance with the
attached Reasons, be borne by the Respondent payable forthwith;
Signed at Vancouver, British Columbia, this
11th day of June 2009.
"J.E. Hershfield"
Citation: 2009TCC304
Date: 20090611
Docket: 2005-1974(IT)G
BETWEEN:
KATHRYN KOSSOW,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Hershfield J.
Background and
Issues
[1] This is a motion made
with respect to four appeals all relating to a particular leveraged donation
program. The appeals concern alleged donations made for the purchase of certain
art works which ultimately included certain works purchased by a Mr. Abrioux
who the Respondent intended to call as a witness at the hearing of each of the
appeals.
[2] The Respondent has
asked for an Order pursuant to section 119 of the Tax Court of Canada Rules
(General Procedure) (the “Rules”) to examine Mr. Abrioux before the
hearing of the appeals. The grounds relied on are as set out in paragraph
119(2)(b) of the Rules which state that this Court, in exercising its
discretion to grant the leave sought, shall take into account the possibility
that the witness will be unavailable to testify at the hearing by reason of
death, infirmity or sickness. The Respondent asserts that to be the case in
respect of Mr. Abrioux. The only evidence of this is that Mr. Abrioux is 82
years of age and that an audit team leader observed that he may not be
in the best of health. As well, it was noted that there have already been
numerous long delays in bringing these appeals to trial and the matter has yet to
be set down for trial.
[3] The Respondent
seeks the Order to examine Mr. Abrioux before the hearing of the appeals on the
basis that the testimony so taken will be accepted as evidence at the trial of
each of these appeals and Mr. Abrioux should not be called to give evidence at
the hearing of the appeal. The Respondent relies on section 122 of the Rules in
making this request.
[4] As well, the
Respondent has requested that the examination of Mr. Abrioux be by videotaped
conference call, that all the appellants be allowed to participate in the
examination and that the evidence be common to the appeals of each of them.
[5] While noting that
the risk of Mr. Abrioux not being able to appear at a hearing has not been well
established by the Respondent, the appellants did not oppose the motion. Accordingly,
there appears to be the necessary consent to the application of section 119 of
the Rules. On this basis, I note that the parties can, pursuant to subsection
119(1) of the Rules, proceed under that section without a direction or Order of
this Court. However, they do not agree that there should be an Order, or presumption
taken from section 122 of the Rules, that by my granting the motion, Mr.
Abrioux would thereby not be required to testify at a trial of the appeals even
if he was able to do so. This issue (the “Section 122 Issue”) was the main
focus of the parties at the hearing of this motion.
[6] The parties also
seek an Order as to costs. There are two sets of costs to deal with. First,
there are the costs relating to the hearing of the motion. Secondly, there are
the costs of conducting the examination.
[7] I see little
difference between the position of the parties in respect of the costs of
conducting the examination although the rationale for their respective views
differ. The Respondent, having argued that the examination costs were in lieu
of or in the stead of costs that would be incurred at a trial (excepting the
costs of the video), moved for an Order that the costs of the examination be
reserved to the trial judge. The Appellant argued that the costs of the
examination should be reserved to the trial judge, not because they were
incurred in lieu of costs that would have risen at trial (since that issue in their
view should not yet be determined), but rather because the factors that may be
relevant have yet to unfold.
[8] As to the cost of
the motion, the Respondent seeks an Order granting costs in its favour. The Appellant
argued that the Respondent, as the party requesting this examination, should
bear the cost and that it should not be left to the trial judge. The Respondent
argued that the need to bring this motion was greater now than it was a few
years earlier and that the delays were the fault of the appellants.
Accordingly, the appellants should bear the costs of the motion. I am not
satisfied on what is before me that the delays were the fault of the appellants
to such an extent as would justify an Order for costs on that basis.
The Section 122 Issue
[9] As noted, the Respondent
relies on section 122 of the Rules, which, it is suggested, supports an Order
that Mr. Abrioux should not be called to testify at any hearing of the appeals.
Section 122 reads as follows:
Use at Hearing
122. (1) Any party may use at the
hearing the transcript and a videotape or other recording of an examination
under sections 119 and 121 as the evidence of the witness, unless the Court
directs otherwise for any sufficient reason.
(2) A witness whose evidence
has been taken under section 119 or 121 shall not be called to give evidence at
the hearing, except with leave of the judge.
(3) Use of evidence taken
under section 119 or 121 is subject to any ruling by the judge respecting its
admissibility.
(4) The transcript and a
videotape or other recording may be filed with the Court at the hearing and
need not be read or played at the hearing unless a party or the judge requires
it.
[10] This Rule clearly provides
that any party may use at the hearing the transcript and a videotape or other
recording of an examination under section 119 as the evidence of the witness,
unless the Court directs otherwise. No such direction is sought or being made. Further,
subsection 122(2) of the Rules provides that a witness whose evidence has been
taken under section 119 shall not be called upon to give evidence at the
hearing, except with leave of the judge.
[11] The Respondent seemed to
argue that by virtue of subsection 122(2) of the Rules, Mr. Abrioux’s evidence
on videotape can be the only evidence allowed at the hearing since the use of
the word “shall” suggests the mandatory nature of using only the videotape as
evidence. The Respondent argued that the purpose of the motion and subsection
122(2) of the Rules was to ensure efficiency by having the witness testify only
once. A better case might be made however that the purpose is to preserve the
evidence that might otherwise be lost. Regardless, I can hardly believe that
the Respondent is requesting an Order to bind the hands of the trial judge by
having it provide that the videotape evidence be accepted as the only evidence to
be given at trial. While the parties argued at the hearing as if that was the Order
requested, I only see a motion for an Order that the before-hearing testimony
of Mr. Abrioux be made available to be tendered and accepted as evidence
at the trial. There is nothing in that that suggests an attempt to have me bind
the hands of the trial judge.
[12] Perhaps all that is
at issue here is whether section 122 of the Rules changes any common law
presumption that this type of testimony, commonly referred to as de bene
esse evidence, is in the nature of insurance only. The common law approach is
that it can only be used if the witness cannot in fact attend the trial.
[13] The two cases cited
by the Respondent on de bene esse evidence both refer to the common law
that an Order for an out of Court examination is made de bene esse so if
the witness is alive and well at the time of the trial he must give evidence in
that forum.
Both such authorities also make it clear that in the case where evidence is
heard at trial, any evidence stemming from the out of Court examination would
be duly disregarded.
[14] In Samson, Teitelbaum
J. confirmed the de bene esse principle laid out by Hugessen J. in Dene
Tsaa First Nation:
3 However, in the event that Mr. Moore is alive,
physically well and available when the Oil and Gas phase comes to trial, he
will give his evidence in Court at that time. Any videotapes and transcripts
stemming from his out of Court testimony will be duly disregarded. In making
this particular, and in my opinion important point, I am guided by the recent
Judgment of the Honourable Mr. Justice Hugessen in Dene Tsaa First Nation v. Canada, [2002] F.C.J. No. 1107.
…
[15] In Dene Tsaa
First Nation v. Canada, [2002] F.C.J. No. 1107 , Hugessen J. of the Federal Court
(Trial Division) addressed the issue of granting such an Order:
7 … An order for the out of Court examination of a
witness who is in Canada is always made, as we, lawyers, use to say, de bene
esse, that is to say, for what it may be worth. If the witness is still alive
and still available at the time the case comes on for trial, even if he cannot
travel from Fort Nelson, the Court will, I have no doubt, accommodate that and
make arrangements to go to Fort Nelson to take his evidence. But if, heaven
forbid, Mr. Dickie should be no longer available or able to give evidence when
this case finally comes on for trial, and that is likely to be several years hence,
the ends of justice would be better served by having what we can of his
evidence made available in such form as we can make it rather than depriving
the Court of that evidence.
[16] In Schwartz, Kent
J. granted an Appellant’s application to examine two elderly witnesses de
bene esse. In granting the application, the Court stated that de bene esse evidence is intended to preserve evidence
in case a witness becomes incapable of testifying. If the witness is able to
testify at the date of trial, then the witness must appear in person. The Court
went on to say:
12 Finally, and obviously subject to a ruling by
the trial judge, if the applicant proposes to tender the videotaped evidence
rather than the witnesses themselves, the onus on the applicant will be heavy
to prove that the witnesses are not able to testify.
[17] This takes me back to
the position of the appellants who argue that the de bene esse principle
is still good law. That is, it was argued that section 122, in spite of its
apparently clear language in subsection (2), was not intended to replace the
common law de bene esse principle.
[18] It strikes me that
if the appellants want the witness to give fresh evidence at trial they can
argue, if the witness is able, for leave from the judge or, as they did at the
hearing of the motion, that no such leave is required. While it is not my place
to suggest what a trial judge’s response to such an argument might be, I refer
the parties to the Ontario Superior Court of Justice decision in Russett v.
Bujold.
[19] That case dealt with
a similar rule to section 122 which has been embodied in the rules of the
Ontario Superior Court of Justice. It
provides a good historical perspective of the rule which it refers to as the
“modern rule”. Suffice to say there may be many reasons to grant leave to
abandon this modern rule in favour of the common law principle of de bene
esse as done in that case. If the witness is able to testify at the trial,
the question of granting him leave to do so could consider such factors as
costs, credibility, the need for further questioning given the evidence before
the Court or the desirability of the judge seeing the witness first hand. One
might argue that granting leave on such terms is no different than allowing for
the re-examination of a witness as provided for in subsection 144(1) of the
Rules.
Conclusions
[20] In any event, I am
granting the motion for a before hearing examination of Mr. Abrioux without
ruling in any way as to the use, if any, to be made of his evidence so given
and whether he might be called to testify at the trial if he is able.
[21] As to costs, I note
that the authorities relied on by the Respondent provided no guidance as how
costs might be properly and fairly dealt with in this case.
[22] In Dene Tsaa
First Nation the defendant Crown requested that the evidence be taken
outside of Court. The motion was allowed and costs were reserved on a “costs in
the cause” basis.
[23] In Samson,
the defendant Crown, who requested that the evidence be taken outside of Court
had to pay costs of the videotaping. All other costs arising from the
examination of the witness were to be addressed at a later date.
[24] In Schwartz, the
applicant plaintiff filed the motion and was ordered to pay taxed costs payable
forthwith in respect of the motion.
[25] In this case, I
believe the Respondent’s cautious approach to getting evidence in hand can be
presumed to be in the interests of supporting the Crown’s case and accordingly
the costs of the motion made somewhat simpler by the Appellant not having
contested it per se, should be awarded to the appellants. On the other
hand, considering the appellants made no written submissions and appeared to
have done little, if any, advance preparation in respect of their argument on
the Section 122 Issue, which they raised at the hearing of the motion, I see no
reason to award the appellants costs beyond one half of the applicable tariff set
out in paragraph 1(1)(c) of Tariff B of the Rules. For greater certainty, such
costs payable forthwith by the Respondent shall be payable once for the
Appellant Kossow and once for all the other appellants as if they were one
party.
[26] As to the costs of
the examination itself, there is too much yet to be learned and decided to award
costs to a particular party. Costs of the examination shall be as directed by
the trial judge. Disbursements shall in the first instance be borne by the
Respondent.
Signed at Vancouver, British Columbia, this 11th day of June 2009.
"J.E. Hershfield"
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