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Citation: 2006TCC498
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Date: 20060908
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Docket: 2001-3839(IT)G
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BETWEEN:
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CHARLES B. LOEWEN,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent,
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AND
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Docket: 2003-446(IT)G
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BETWEEN:
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ANDREW PRINGLE,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent,
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AND
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Docket: 2003-1073(IT)G
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BETWEEN:
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MICHAEL DE PENCIER,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR ORDER
Bowman, C.J.
[1] These motions were heard together. The respondent seeks orders compelling the appellants to answer certain questions that were refused on discovery. Immediately following the respondent's motion, a similar motion by the appellant was heard to compel the respondent's representative to answer certain questions.
[2] I do not propose to outline in detail the facts and issues. The parties are familiar with them. The appeals involve the investment by the appellants as co-owners in an undivided interest in computer software known as Arachnae Information Retrieval System Software (the "software" or "AIRS II"). Mr. Loewen's notice of appeal alleges that he bought an undivided 6.25% interest in the software for $500,000, i.e., $150,000 in cash and $350,000 by way of promissory note. His investment was premised on the view that the software had a fair market value ("fmv") of $8,000,000, based on a valuation by a chartered business valuator.
[3] Mr. Loewen claimed capital cost allowance ("cca") of $250,000 in 1993 and $250,000 in 1994 in respect of the software. The Minister of National Revenue disallowed the cca claimed. One of the assumptions in which the assessment was based was that the software had a fmv that did not exceed $1,600,000.
[4] A number of issues arise in the appeals. I shall summarize the main ones briefly:
(a) Were the vendor and the purchasers at arm's length?
(b) What was the fmv of the software at the relevant times?
(c) In any event was the price paid reasonable?
(d) Was the software available for use at the relevant time?
(e) Was the promissory note given as part of the consideration contingent?
[5] Counsel for the appellants asked if I could issue my order and reasons for order as soon as possible because there are other proceedings that are going on in September upon which my disposition of these motions may have a bearing. I shall try to accommodate counsel but my reasons may have to be somewhat briefer than they might otherwise have been.
[6] Both counsel provided charts of the questions asked and refused in respect of which they want an order compelling answers. I shall refer to the pages and question numbers as they appear on the charts in the respondent's motion and the item number on the left hand side of the chart in the appellants' motion.
Respondent's Motion
(a) Page No. 99, questions 444-446.
The appellants are asked to produce an electronic version of the source code rather than a printed copy. To determine the fmv of software it is patent that the electronic version is required. A printed version is simply inadequate. The best evidence is the electronic version which contains far more informative data than the printed version. It should be produced. Appropriate undertakings with respect to confidentiality should be given by the officials of Canada Revenue Agency, Justice and the expert retained to give an opinion of value. The Crown has undertaken to bear the expense relating to the producing of the electronic version.
(b)
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Page No.
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Question No.
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124-125
131
132-133
133
134
135
135-136
136-137
137-138
139
141-142
142-143
144
144-145
145
147
147-148
187-189
191
192-193
193-194
195
196
197
205-206-209-210
233
236
315
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571
590-591 and 600
601-603
604-605
607-608 and 609
611-612-613-614
615
617-621
626
628-631
643
650
657
659
660-663
670
672
675
683
736
761
829
841
849
855
861
871
876
881
977
989
1364, 1365
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[7] In all of these questions the appellants were asked to advise as to what fact in issue the documents related. To put the matter more colloquially, "Why is this document on your list and what does it have to do with this case?" In every case the response was the same.
Tari's Letter of July 14, 2006
See the answer in footnote 1.1
[Text of footnote]
At this time, the appellant does not know what fact in issue the document relates to. The document is a business record of Arachnae Management Ltd. The appellant has no personal knowledge of this document.
The document was produced in accordance with the appellant's obligation pursuant to paragraph 81(1)(b) of the Tax Court of Canada Rules, General Procedure that requires the appellant to file documents of which he has knowledge that might be used in evidence. Indeed, paragraph 88(1)(a) of the General Procedure Rules precludes the appellant from using a document at the hearing unless the document is listed in accordance with paragraph 81(1)(b). At this time, the appellant does not know the intended use for this document. It was produced because it appeared to have a semblance of relevance to this appeal, and it may be determined during the course of preparing for trial or during the hearing of the evidence at trial that the document bears relevance to establish or assist in establishing any allegation of fact pleaded by the appellant or to rebut or assist in rebutting any allegation of fact pleaded by the respondent.
[8] This, in my view, is not an acceptable answer. A party is entitled to know why a document is being produced. One must bear in mind that section 81 of the Tax Court of Canada Rules (General Procedure), in contrast with section 82, is rather unique in that it requires only that the party produce a list of documents that it is intended will be used in evidence. If the answers given were acceptable it would mean that a litigant could swamp the other side by producing cartons of documents and leave it to the other side to go through them in an attempt to anticipate what use, if any, will be made of them. I think a litigant is entitled to know why the other party thinks a document is relevant. It is insufficient to say, in effect, that a document is being put in the list of documents on the off chance that it may be useful to rebut some unspecified point that the other side may wish to make.
[9] The questions should be answered or the documents removed from the list.
(c) Pages 150-151, questions 690-695.
I think that Mr. Loewen should make a more precise analysis or advise that it is impossible for him to do so.
(d) Page 160, questions 725-726.
I think the answer given is adequate and that no further explanation is required.
(e) Page 256, question 1075.
This question should be answered. It is possibly relevant to the question of due diligence and the question of arm's length, given the relatively low threshold of relevancy required on discovery.
(f) Pages 256-257, questions 1076 and 1079-1080.
No order is necessary as the questions have been answered.
(g) Pages 281-282, question 1220.
Page 282, question 1222.
This answer is inadequate. A more detailed technical explanation is required.
(h) Pages 282-283, question 1223.
This question asks for facts supporting the allegation that Arachnae began conducting the business of commercially exploiting the software. The answer is unresponsive. Details about what Arachnae did should be provided.
(i) Pages 282-283, questions 1223 and 1227.
I am not prepared to extend the concept of "litigation privilege" or "work product of counsel" to the point of allowing a party to refuse to disclose documents or information in its possession that are relevant to the litigation.
[10] The leading case on litigation privilege is General Accident Assurance Co. v. Chrusz, 45 O.R. (3d) 321 (Ontario Court of Appeal). I do not propose to examine in detail the concept of litigation privilege. It is a far more restricted principle than the appellant suggests. The modern view of discovery is in favour of full disclosure and it is this principle which I think should be applied in this court. We have long since moved away from the "trial by ambush" that prevailed in the old Tax Review Board or the Tax Appeal Board. There is a useful short summary of the matter in Sopinka, Lederman & Bryant, The Law of Evidence in Canada, Second Edition, Supplement:
8. Materials Obtained and Prepared in Anticipation of Litigation / Litigation Privilege
§ 14.75.1 Litigation privilege applies to the work product of the Crown in a criminal case and includes the work produced by the police for the preparation of the trial. It would not include similar work produced by the police during the investigation stages leading up to the prosecution of the accused, which would be subject to disclosure obligations.
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§ 14.78.1 In General Accident Assurance Co. v. Chrusz, the Ontario Court of Appeal analyzed communications between an insurance adjuster and the instructing solicitor in the context of litigation privilege. The Court recognized that the origin of litigation privilege was different from that of solicitor-client privilege and that litigation privilege provided a "zone of privacy" within which a solicitor can prepare for trial without intrusion into his or her thoughts or work product.
§ 14.78.2 Since its rationale differs from solicitor-client privilege, litigation privilege is not accorded the same sanctity and the Court considered when litigation privilege may have to yield to full and timely pre-trial production and disclosure.
§ 14.78.3 Carthy J.A. pointed out that the modern-day reality is in the direction of complete discovery, which has necessarily eroded the extent of litigation privilege. He stated that "[i]n effect, litigation privilege is the area of privacy left to a solicitor after the current demands of discoverability have been met." Thus, the zone of privacy has been diminished in the face of broad disclosure requirements.
§ 14.78.4 Consistent with the contemporary trend of more expansive discovery, the Ontario Court of Appeal also preferred that the "dominant purpose" test govern each case, rather than the "substantial purpose" test, which hitherto had been the predominant position in Ontario. Thus, the law in Ontario is now in accord with appellate decisions in Nova Scotia, New Brunswick, British Columbia and Alberta, holding that litigation privilege will only attach if the dominant purpose for the third party communication was to assist in possible forthcoming litigation.
[11] In my view, whatever may be the ambit of the litigation privilege or work product of counsel, no factual basis has been established to justify the refusal of an answer to the clearly relevant question 1223.
(j) Pages 318-319, question 1382.
Page 321, question 1391.
Mr. Loewen should make enquiries and inform himself.
Appellants' motion
[12] In this part of the reasons I shall refer to the question only by the number of the item on the left-hand side of the appellants' chart.
1 & 2: The Crown advises that it will answer the questions.
3, 4 & 5: These questions deal with information or documents which the Canada Revenue Agency gave to Mr. Cole who prepared a report on the value of the software. Since his report was part of the material on which the assessments were based, the information that was before him is relevant and necessary in testing and, if necessary, attacking his conclusions. Counsel for the respondent originally refused to answer the questions on the basis of relevancy and of litigation privilege. She has in respect of this refusal and in respect of all other refusals, abandoned the litigation privilege argument. On the question of relevancy, she argues that the material that was before Mr. Cole is relevant only if she calls him as a witness. With respect, I disagree. One of the bases upon which an assessment may be attacked is that the assumptions upon which it is based are wrong (M.N.R. v. Pillsbury Holdings Ltd., 64 DTC 5184). One of the assumptions here is that the fmv of the software did not exceed $1,600,000. To establish that that assumption is wrong it is necessary to know the material upon which the valuation which forms the basis of the assumption is founded. If the information or material given to the valuator is either deficient or wrong, this may cast doubt on the opinion of value and hence the assumption. The question should be answered.
6,7,8 & 9: These questions all relate to Mr. Cole's report, including the material he relied on, such as the Blue Link report. The appellant is clearly entitled to know the basis upon which the report was made.
10: Obviously this question should be answered.
11: The Crown has now answered this question in the negative.
12 & 13: Clearly a proper question. It bears on the basis of the valuation.
14: I think the refusal is justified if it involves using information obtained by the Minister of National Revenue under the Income Tax Act. Also, the answer may very well be a violation of Mr. McCutcheon's right to have his personal affairs kept private and since it is of marginal relevance I am exercising my discretion not to permit the question.
15 to 24: The questions are proper ones.
Respondent's counsel has abandoned the litigation privilege argument but now says that it is an improper use of discovery of the Crown to attempt to discover a potential expert. Previously she refused to answer questions about Mr. Cole's basis of his opinion on the ground that the questions could only be asked if Mr. Cole was going to be called as an expert witness. In any event, subsection 95(3) of the Rules contemplates obtaining precisely the type of information that the appellant wants to obtain from Mr. Cole. The questions should be answered.
25: Counsel for the appellants argues that it is proper to ask for a summary of the evidence of the witness that the Crown intends to call. Counsel for the respondent says that the rules of the Tax Court of Canada do not provide for such summaries. The Rules do not provide for this. I agree with the view expressed by Rothstein J., sitting as a member of the Competition Tribunal, inCanada (Director of Investigation and Research) v. Washington, 70 C.P.R. (3d) 317, where he said at page 3:
With respect to witness statements or statements from third-party sources, or summaries or "gists" of those statements, rule 458(1)(b) of the Federal Court Rules, C.R.C. 1978, c. 663, which guides us in these proceedings, requires that the person being discovered:
458(1) ... answer, to the best of the person's knowledge, information and belief, any question that
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(b) concerns the names or addresses of any person, other than an expert witness, who might reasonably be expected to have knowledge relating to any matter in question in the action.
There is no reference in the rule to providing statements or summaries of statements obtained from those third-party sources. Counsel for the Director provided some authority to the Tribunal that in Ontario there has been a practice of providing, for discovery purposes, summaries of evidence that witnesses may be expected to give. However, the authority in Ontario seems to be mixed on the point.
Rule 458(1)(b) was brought in force on December 6, 1990. While I do not want to place too fine a point on it, I am inclined to think that there was sufficient knowledge amongst lawyers and courts at that time that, had it been the intention to require "gists" or summaries of statements for discovery purposes in the Federal Court, there would have been some reference in rule 458. I do not see such reference. I am not suggesting that there may not be circumstances when "gists" or summaries might not be appropriate, and it may be within the Tribunal's discretion, when applying rule 458, to require such production. But, generally, I do not think that production of such "gists" or statements are contemplated by the rule and I would not require it in this case.
[13] This may be compared with the view expressed by Ewaschuk J. in Tax Time Services Ltd. v. National Trust Co., 3 O.R. (3d) 44. He referred to subsections (1) and (2) of Rule 31.06 of the Ontario Rules which are the same as subsections 95(1) and (3) of the Tax Court of Canada Rules (General Procedure). Ewaschuk J., at pages 46-48, reviewed the existing jurisprudence in Ontario. Since this is the first time that this point has arisen in this court I am reproducing Justice Ewaschuk's analysis:
Legal background
Prior to the coming into force in January 1985 of the new Rules of Civil Procedure by O. Reg. 560/84, the case law provided that examination for discovery prohibited the following: obliging the examined person to disclose evidence as opposed to facts; cross-examination; and, compelling the examined person to disclose the identity of a witness (Tossy v. Robert Simpson Co., [1949] O.W.N. 57 (H.C.J.)). See generally A.I. Schein, "Rule 31.06 of the Ontario Rules of Civil Procedure" (1989), 10 Advocates' Q., 364.
These restrictions on examinations for discovery were removed under the new rules. Rule 31.06(1)(a) expressly compels a person being examined for discovery to answer questions relating to any matter in issue in the action even though the information sought is evidence. Rule 31.06(1)(b) expressly compels an answer notwithstanding that the question on examination for discovery constitutes cross-examination. Finally, rule 31.06(2) compels the disclosure on examination for discovery of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in the action.
The new rules were obviously intended to liberalize discovery and compel more disclosure between parties. This in turn assists the parties in defining issues prior to trial and ultimately promotes reasonable settlements since parties can now better assess the strength of the case which they must make out or meet.
It was in this vein that Mr. Justice Steele decided in 1985 that a party being examined for discovery must disclose the name and address of a witness "as well as a summary of the evidence that that witness [is] expected to give": See Blackmore v. Slot All Ltd. (1985), 18 C.P.C. (2d) 181, at p. 182 (Ont. H.C.J.) [leave to appeal refused (1985), 21 C.P.C. (2d) xlvii (note) (Ont. H.C.J.)]. I note that Mr. Justice Steele ordered the party being discovered to re-attend and answer questions relating to the evidence that the witness was expected to give instead of requiring the party to provide a written summary.
The following year Mr. Justice John Holland clarified the interpretation of rule 31.06(2) by correctly pointing out that the rule does not deal with trial witnesses but with persons reasonably expected to have knowledge of the factual issues in question. See Williams v. David Brown Gear Industries (1986), 14 C.P.C. (2d) 227 (Ont. H.C.J.).
A number of cases followed dealing with the issue as to whether evidence derived from surveillance films of a plaintiff must be disclosed by the defendant prior to trial. In Murray v. Woodstock General Hospital Trust (1988), 66 O.R. (2d) 129, 30 C.P.C. (2d) 268, 31 O.A.C. 153, the Divisional Court addressed this issue and held that rule 31.06(1) requires a defendant being discovered to disclose information contained in the film even though the film itself constitutes a privileged document.
The last case I would refer to is Dionisopoulos v. Provias (1990), 71 O.R. (2d) 547 (H.C.J.). In that case, Mr. Justice Granger succinctly canvassed the applicable jurisprudence. He concluded that the party being discovered need not provide a list of the witnesses the party intends to call at trial but must provide, if requested, "[a] summary of the substance of the evidence of those persons who might reasonably be expected to have knowledge of the matters in issue" [at p. 552]. I respectfully agree with his conclusions.
Counsel have informed me that a practice has developed in answer to the obligations under rules 31.06(2) and 31.06(1)(a) whereby written summaries or "gists" of potential witnesses' evidence are often provided by a party being discovered by way of undertaking. See also Hon. A.B. Rosenberg (1990), 11 Advocates' Q. 507. This practice indeed appears to be consistent with a purposive reading of Rule 31 to promote fuller discovery. I have, however, no knowledge of any reported case or article that states that the party being discovered must provide a written summary as well as providing an oral summary of the substance of the person's evidence on discovery. That proposition, of course, is belied by a close reading of rule 31.06.
I conclude that a combination of rules 31.06(1)(a) and 31.06(2) requires that "[a] party may on an examination for discovery obtain disclosure of the names and addresses" and, if requested, an oral summary of the substance of the evidence of "persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action". (This conclusion is subject to the qualifications set out hereafter.) Furthermore, it is immaterial that the party being discovered does not intend to call the persons as witnesses. The other party must also have an opportunity to decide if it should or should not call the witness to testify at trial in case the opposing side does not. Once the opposing party requests the above information on discovery, the party being discovered must disclose this information in the form of oral answers but that party has no additional obligation to provide a written summary or gist of the person's knowledge. The discovering party may, however, request an undertaking by the party being discovered to provide written summaries at a later date.
I add that it does not devolve on me to decide the proper scope of rules 31.06(1) and (2) which is obviously restricted by rules of evidence, particularly the limits of privileged evidence. These limits relate more to disclosure of evidence than to disclosure of the identities of potential witnesses, with the exception of informer privilege. I note, however, that rule 31.06(2) is apparently restricted to the identity of a person not within the employ or control of the other party unless the party being discovered has or intends to obtain a statement from that person. Furthermore, rule 31.06(1) is apparently restricted to the evidence of persons over whom the party being discovered has control or reasonable access. It would also appear that rule 31.06(1) does not require the party being discovered to provide statements, unless already obtained, from independent persons to whom the opposing party has equal access.
The party being discovered may not, however, have to provide summaries of the evidence of all potential witnesses whose identities must be disclosed. In this respect, the scope of rule 31.06(1) and (2) becomes clearer with the aid of a "homey" example. Assume the plaintiff and defendant are involved in a car accident to which ten persons are eye-witnesses. The plaintiff obtains the names of all ten witnesses to the accident but knows the evidence of only three and intends to call only the three as witnesses.
In the above example, the plaintiff must disclose the identity of all ten witnesses. However, the plaintiff need disclose the evidence of only the three witnesses whose evidence he knows. This conclusion assumes that the defendant has equal access to the other seven witnesses and that the plaintiff has no control over those witnesses.
[14] Despite the thoroughness of the analysis made by Ewaschuk J. it is not entirely clear just what he decided. I am in respectful agreement with what Rothstein J. said. Our court's rules do not contemplate the providing of summaries of possible witnesses' evidence. If that were what was intended it would have been a simple thing for the rules to say so. Accordingly, question 25 need not be answered.
26: The appellant is not pursuing the second part of the question.
27 & 28: The Crown has agreed to answer these questions.
29: I agree with the Crown on this question. What Mr. Kingston, the appeals assessor, happens to think are the technical features of AIRS II seems to me to add nothing to anybody's case. If the technical features of the software are relevant to the issues in these appeals, the appellants are in the best position to put this evidence in.
[15] The motions are allowed in part and the parties are ordered to answer the questions to the extent indicated in these reasons. Success is divided. The parties will bear their own costs.
[16] May I respectfully suggest that the parties get on with this litigation, which started in 2001, and cut out the procedural manoeuvring.
Signed at Ottawa, Canada, this 8th day of September 2006.
Bowman, C.J.
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