Silicate Holdings Ltd. v. The Queen, docket 1999-3111-IT-G

Date: 20010214

Docket: 1999-3111-IT-G

BETWEEN:

SILICATE HOLDINGS LIMITED,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Order

Beaubier, J.T.C.C.

[1]            This motion by the Appellant is for the following relief:

1.              An order pursuant to Rule 93(4) of the Tax Court Rules ("Rules") permitting the Applicant to examine the Respondent on a second occasion by producing Sharon Gulliver for discovery;

2.              In the alternative to the relief requested in paragraph 1, an order pursuant to Rule 110 instructing the nominee of the Respondent, Kathryn Hunter, re-attend at the Respondent's expense to answer those questions she failed to answer on her examination for discovery and any further questions that arise from those answers;

3.              An order pursuant to Rules 88 and 110 instructing the Respondent to disclose certain relevant documents;

4.              That the Respondent be directed to pay forthwith the costs of the Motion, any costs thrown away, and the costs of any continuation of the examination;

5.              Such further or other Order as this Honourable Court may deem just.

Subsection 93(4) and section 110 of the Court's Rules read:

(4)            Where an officer, director or employee of a corporation or of the Crown has been examined, no other officer, director or employee of the corporation or the Crown may be examined without leave of the Court.

110.          Where a person fails to attend at the time and place fixed for an examination in the notice to attend or subpoena, or at the time and place agreed on by the parties, or refuses to take an oath or make an affirmation, to answer any proper question, to produce a document or thing that that person is required to produce or to comply with a direction under section 108, the Court may,

(a)            where an objection to a question is held to be improper, direct or permit the person being examined to reattend at that person's own expense and answer the question, in which case the person shall also answer any proper questions arising from the answer,

(b)            where the person is a party or, on an examination for discovery, a person examined on behalf of or in place of a party, dismiss the appeal or allow the appeal as the case may be,

(c)            strike out all or part of the person's evidence, including any affidavit made by the person, and

(d)            direct any party or any other person to pay personally and forthwith costs of the motion, any costs thrown away and the costs of any continuation of the examination.

[2]            The Appellant filed the transcript of the Examination for Discovery of Kathryn Hunter in support of the motion. The Respondent filed the affidavits of David Turner and of Kathryn Hunter in opposition to the motion, upon which the Appellant also filed transcripts of examinations on the affidavits.

[3]            The motion arises in part from the fact that the Respondent listed three documents in its list of documents shown as pages 14, 65 and 66 under Tab 58 of its production of documents. Each of these related to other taxpayers. The Respondent states that this was done wrongly, by mistake, and contrary to section 241 of the Income Tax Act ("Act"). The Appellant found those documents and proceeded to Examinations for Discovery respecting them. Respondent's witness refused to answer on the instruction of counsel. The Appellant now asks for an order by the Court that the Respondent produce a witness to answer questions relating to these three documents and matters arising therefrom, as well as other matters.

[4]            At the outset, counsel for Ford Motor Company of Canada, Limited ("Ford") moved to intervene under Rule 28 respecting this motion on the basis that the Appellant's motion seeks documents in CCRA's possession relating to one of its predecessor corporations. The basis of this motion is that Ford has a jurisprudential interest in this matter. Its position as to Section 241 is identical to the Respondent's. Therefore, intervention was denied. (See Tioxide Canada Inc. v. Canada, (F.C.A.) 94 DTC 6655.

[5]            In reviewing the Appellant's motion, there are two overriding considerations which govern. They are, in order:

1.              Subsection 241(1) of the Act, which reads:

(1)            Except as authorized by this section, no official shall

(a)            knowingly provide, or knowingly allow to be provided, to any person any taxpayer information:

(b)            knowingly allow any person to have access to any taxpayer information: or

(c)            knowingly use any taxpayer information otherwise than in the course of the administration or enforcement of this Act, the Canada Pension Plan, the Unemployment Insurance Act or the Employment Insurance Act or for the purpose for which it was provided under this section.

2.              Relevance, which is more generously interpreted in discovery than at trial.

[6]            With respect to consideration #1, just because the Minister, whether on purpose, by inadvertence or by negligence, wrongfully filed or otherwise provided taxpayer information contrary to section 241, does not mean that any further information should be released by the Minister. It should not. Moreover, the Court itself has no power to authorize a violation of the law of the land in these or any other circumstances.

[7]            With respect to consideration #2, the Appellant has failed to satisfy the Court that, in any event, the dealings of the Minister or his agents with unrelated third parties, or proposals to amend legislation before confirmation of the assessments on April 14, 1999, has any relevance to the taxpayer. Even if officials might express doubt as to the success of litigation, that does not affect the question as to whether an assessment should be made or litigation should be proceeded with. That is merely one of many opinions and doubts that arise in the course of almost all litigation.

[8]            Having referred to relevance, the Court notes that in Louis Riendeau v. The Queen, 91 DTC 5416, the Federal Court of Appeal unanimously ruled as follows at page 5417:

In our view, the Minister's mental process in making an assessment cannot affect a taxpayer's liability to pay the tax imposed by the Act itself. He may correct a mistake. The trial Judge was right in rejecting the appellant's argument and in determining that the Minister was entitled to confirm the reassessments in question.

In doing so, the Federal Court of Appeal referred to the judgment of Thorson, P. in Minden v. The Queen, 62 DTC 1044 at 1050 when he said:

... In considering an appeal from an income tax assessment the Court is concerned with the validity of the assessment, not the correctness of the reasons assigned by the Minster for making it. An assessment may be valid although the reason assigned by the Minister for making it may be erroneous. This has been abundantly established.

Thus the question is what facts the Minister considered in assessing and not the reasons why the assessment occurred.

[9]            Appellant's counsel agreed in Court that the documents improperly released by the Respondent may be redacted as to reference to third parties. As a result, if the parties hereto cannot agree on suitable redaction, they are ordered to refer the matter to the Court for redaction.

[10]          Paragraphs 1, 2, 3, 5, 10, 20, 21, 22, 23, 24, 31, 32, 33 and 37 of the Notice of Appeal are admitted. They read:

1.              The Appellant was incorporated under and is governed by the laws of the Province of Ontario. It is a "taxable Canadian corporation" and a "private corporation" as defined in subsection 89(1) of the Act.

2.              National Silicates Limited ("NSL") was incorporated under and is governed by the laws of the Province of Ontario. It is a "taxable Canadian corporation" and a "private corporation" as defined in subsection 89(1) of the Act.

3.              Silicates National Limitee ("SNL") was incorporated under and is governed by the laws of the Province of Quebec. It is a "taxable Canadian corporation" and a "private corporation" as defined in subsection 89(1) of the Act.

...

5.              NSL owns and at all material times owned all of the issued and outstanding shares of SNL.

...

10.            The business of each of NSL and SNL is the manufacture and marketing of silicates.

...

20.            On or about July 29, 1991, NSL entered into a credit agreement on typical commercial terms with the Chase Manhattan Bank of Canada, Manufacturers Hanover Bank of Canada and Mellon Bank of Canada (the "Banking Syndicate"). The Banking Syndicate agreed to loan NSL 40,190,000 Dutch Guilders. Interest was stipulated to be payable under the terms of the credit agreement. The obligations of NSL were guaranteed by PQ.

21.            On or about July 29, 1991, NSL borrowed the full amount of the commitment of the Banking Syndicate. NSL paid interest in Dutch Guilders equal to Cdn $1,049,999, Cdn $2,803,357 and Cdn $2,081,695 in 1991, 1992 and 1993, respectively. NSL loaned half of the amount that it borrowed to SNL, on terms reflecting the accommodation to it by the Banking Syndicate.

22.            On or about July 29, 1991, NSL and SNL each subscribed for and received 11,687,251 common shares of the Appellant using the net amounts advanced to them described in paragraphs 20 and 21, in each case the Canadian currency equivalent of 20,095,000 Dutch Guilders.

23.            On or about July 29, 1991, the Appellant used the proceeds of the share subscriptions described in paragraph 21, in the form of 40,190,000 Dutch Guilders, to subscribe for 40,190,000 Class A ordinary shares of GAM. The subscription amount at that time was equal to Cdn $23,374,504.

24.            On or about July 29, 1991, GAM loaned 40,068,116 Dutch Guilders to PQ Silicates BV. This loan bore interest on typical commercial terms and was evidenced by a demand promissory note.

...

31.            In 1992 and 1993, GAM paid dividends to the Appellant in the amounts of 1,650,000 Dutch Guilders (Cdn $1,196,422) and 5,401,212 Dutch Guilders (Cdn $3,643,117). These amounts were paid by the Appellant as dividends to NSL and SNL, and by SNL to NSL. NSL paid these amounts as dividends to PQH to which non-resident withholding tax under the Act applied at the rate contemplated by Article X of the Canada-United States Income Tax Convention as it then was in effect.

32.            On January 12, 1996, the Toronto West Tax Services Office advised NSL of its proposal to reassess the Appellant based on an application of subsection 245(2) of the Act. It was alleged that "the incorporation and capitalization of GAM for the purpose of transferring funds to the subsidiaries of PQ Corp. are avoidance transactions". That Office observed that "an additional tax benefit is the tax savings related to the avoidance of reporting interest income [earned by GAM] in Canada pursuant to subparagraph 12(1)(c) of the Act". That Office further observed that in its view the effect of GAM was to "convert what would be interest income pursuant to subparagraph 12(1)(c) of the Act to dividends deductible under paragraph 113(1) of the Act" constituting a "circumvention" of subparagraph 12(1)(c) and a "misuse of paragraph 113(1) and the FAPI provisions and an abuse of the Act when read as a whole". On July 19, 1996 that Office restated its view "that there has been a misuse of subsection 15(8) of the Act."

33.            The Respondent reassessed the Appellant for:

32.1          unremitted withholding tax under Part XIII of the Act in the amount $272,016.00 together with interest thereon of $164,712.99 for the 1991 taxation year (Notice of Assessment No. A362402 dated April 4, 1997);

32.2          unremitted withholding tax under Part XIII of the Act in the amount $3,506,175.00 together with interest thereon of $2,396,040.88 for the 1991 taxation year (Notice of Assessment No. A362403 dated April 4, 1997);

32.3          tax in the amount of $216,376.30 under Part I of the Act on unreported interest income together with arrears interest thereon of $126,750.15 for the 1991 taxation year (Notice of Assessment No. 3978830 dated April 10, 1997);

32.4          tax in the amount of $641,546.34 under Part I of the Act on unreported interest income together with arrears interest thereon of $298,100.09, interest on unremitted instalment tax payments of $20,761.18 and an instalment penalty of $7,785.44, and has deducted and thereby eliminated from the Appellant's income dividends from GAM in the amount of $1,196,422 for the 1992 taxation year (Notice of Assessment No. 3978829 dated April 10, 1997); and

32.5          tax in the amount $505,094.55 under Part I of the Act on unreported interest income together with arrears interest thereon of $179,852.72 interest on unremitted instalment tax payments of $24,614.29 and an instalment penalty of $9,230.36, and has deducted and thereby eliminated from the Appellant's income dividends from GAM in the amount $3,643,117 for the 1993 taxation year (Notice of Assessment No. 3978828 dated April 10, 1997).

...

37.            The Respondent's reassessments were confirmed by the Appeals Branch of Revenue Canada on April 14, 1999. Specifically, the Respondent asserted that "[t]he incorporation and capitalization of Greenfield Asset Management for the purpose of transferring funds to the operating subsidiaries of PQ Corporation are avoidance transactions to which subsection 245(2) of the Act applies." The Respondent further asserted that consequential upon this determination (a) the income of GAM "earned on the transferred funds" was required to be included in the Appellant's income under paragraph 12(1)(c) of the Act for its 1991, 1992 and 1993 taxation years, and (b) the Appellant is liable "under subsection 215(a) of the Act for the amounts that should have been withheld and remitted by virtue of subsection 212(2) and paragraph 214(3)(a) of the Act, in that, if Part I had been applicable, subsection 15(2) of the Act required the transferred funds to be included in the income of the operating subsidiaries of PQ Corporation.

[11]          In addition paragraphs 2, 3, 4, 6, 8, 9 and 10 of the Reply contain various admissions. They read:

2.              With respect to paragraph 4 of the Notice of Appeal, he admits that at all material times National Silicates Limited ("NSL") and Silicates National Limitee ("SNL") together owned all of the issued and outstanding shares of the Appellant, but he has no knowledge of their respective percentages of such ownership, and he does not admit them.

3.              He admits that PQ Corporation ("PQ") and PQ Holdings Co. ("PQH") were incorporated under the laws of the United States of America and that at all material times PQ owned all the issued and outstanding shares of PQH and PQH owned all the issued and outstanding shares of NSL, but he lacks knowledge of the other allegations in paragraphs 6 and 7 of the Notice of Appeal, and he does not admit them.

4.              He admits that PQ Silicates BV ("BV") was created under the laws of The Netherlands, PQ Silicates G.m.b.H. and Potters Ballotini G.m.b.H. under the laws of Germany, Potters Ballotini S.A. under the laws of France and Potters (Thailand) Ltd. ("PTL") under the laws of Thailand, but he lacks knowledge of the other allegations in paragraphs 8 and 9 of the Notice of Appeal, and he does not admit them.

...

6.              He admits that Greenfield Asset Management ("GAM") (formerly "Sequel Enterprises") was incorporated in the Republic of Ireland and that at all material times the Appellant owned all the issued and outstanding shares of GAM, but he lacks knowledge of the other allegations in paragraph 16 of the Notice of Appeal, and he does not admit them.

...

8.              He admits that on or about December 4, 1991, NSL subscribed for additional common shares of the Appellant for $1,813,440, the proceeds of which share subscription were used by the Appellant to subscribe for additional shares of GAM, a company that had been incorporated in Ireland, and which was wholly owned by the Appellant, which proceeds were used by GAM to make loans to PTL, but he had no knowledge of the other allegations in paragraphs 28 and 29 of the Notice of Appeal.

9.              He admits paragraph 31 of the Notice of Appeal and says that

(a)            the Appellant deducted the said dividends received from GAM under subsection 113(1) of the Income Tax Act as having been paid out of GAM's exempt surplus,

(b)            SNL and NSL deducted the said dividends received from the Appellant pursuant to subsection 112(1) of the Income Tax Act, and

(c)            NSL deducted the said dividends received from SNL under subsection112(1) of the Income Tax Act.

10.            He admits that on December 10, 1998, the Minister of Finance announced legislative proposals to amend certain provisions of the Income Tax Act, and that on December 18, 1998 the Minister of Finance announced a moratorium on such proposals on the terms he stated, but he otherwise denies paragraphs 35 and 36 of the Notice of Appeal, and says that these proposals concerned amendments to section 17 of the Income Tax Act, as it applied to the taxation years under appeal, which has no direct application to the transactions in issue in this appeal. He further says that the amendment to subsection 17(1) in any event does not apply to the taxation years under appeal, and that those provisions of the amendment that introduce a specific anti-avoidance rule which would include the transactions in issue in the present case, were they to occur in taxation years, commencing with the year 2000, do not make the general anti-avoidance rule in section 245 of the Act inapplicable to the transactions in issue in this appeal.

[12]          Finally, paragraphs 11 (the assumptions) and 12, 16, 17 and 18 of the Reply summarize the position of the Respondent. They read:

11.            He says that in reassessing the Appellant for income tax for its 1991, 1992 and 1993 taxation years the Minister of National Revenue assumed:

(a)            the facts hereinbefore admitted,

(b)            that in or about August, 1990, PQ planned for NSL to borrow money for the purpose of purchasing preferred shares of BV to enable BV to extinguish its debt to an external party,

(c)            that by July, 1991, PQ devised a scheme which in broad outline involved PQ's Canadian subsidiaries borrowing money in Canada, as well as using funds of their own resources, for the purpose of funding certain of PQ's non-Canadian subsidiaries by way of loans in a manner

(i)             that the interest payable by these Canadian subsidiaries would be deductible in computing their income, and thus result in tax savings, but that the interest income from the use of the proceeds of these loans and other funds would be diverted to a low-tax or tax haven jurisdiction, with the intent of taking advantage of certain provisions of the Income Tax Act to convert what would otherwise be interest income into tax-free dividends and thus make such income nontaxable in Canada, and

(ii)            that nonresident withholding tax that would otherwise be payable by the nonresident recipients of the loans, had these loans been made to them directly by NSL, SNL or the Appellant, would be avoided,

(d)            that the implementation of the said scheme involved

(i)             NSL borrowing the funds required to fund BV from arm's length sources in Canada under PQ's guarantee, and

(ii)            NSL loaning a portion of the borrowed funds to SNL, and

(iii)           instead of NSL and SNL making loans to BV directly, the inerposition of the Appellant and GAM between NSL and BV by way of equity investments,

(e)            that the said plan was carried out between July and December, 1991, in the manner alleged in paragraphs 20-24 of the Notice of Appeal,

(f)             that on or about December 4, 1991, PQ also determined that PTL be funded by way of a loan, the source of which funds was to be NSL's own resources, and that this funding similarly be accomplished by interposing the Appellant and GAM, rather than NSL, make the loan to PTL,

(g)            that if NSL, SNL or the Appellant had made direct loans of these funds to BV and PTL:

(i)             they would have earned interest on these loans, which interest would have had to be included in computing their income pursuant to paragraph 12(1)(c) of the Income Tax Act, and

(ii)            subsection 15(2) of the Act would have applied to include the amounts of the loans in the recipients' income pursuant to subsections 15(2) and 15(2.1) of the Act, with the result that since BV and PTL were nonresidents of Canada, subsection 214(3) of the Act would have applied to deem the amounts of the loans to BV and PTL to be dividends on which they were liable to pay an income tax of 25% under subsection 212(2) of the Act, which tax NSL or the Appellant would have been obliged to deduct or withhold and remit to the Receiver General of Canada pursuant to subsection 215(1) of the Act, which tax would be refunded pursuant to subsection 227(6.1) of the Act if and when the loans were repaid,

(h)            that the following tax benefits were obtained through the implementation of the said scheme:

(i)             NSL's deduction of the interest paid on the said loan guaranteed by PQ,

(ii)            SNL's deduction of the interest paid on the said loan from NSL;

(iii)           NSL's, SNL's or the Appellant's avoidance of the interest income which would otherwise have resulted from direct loans to BV and PTL pursuant to paragraph 12(1)(c) of the Income Tax Act, and

(iv)           BV's and PTL's avoidance of its liability to pay, and NSL's and SNL's liability to deduct or withhold and remit to the Receiver General of Canada, the tax imposed on such loans under Part XIII of the Income Tax Act, in particular, by a combination of subsections 15(2), 15(2.1), 212(2), 214(3) and 215(1) of the Act.

(i)             that these tax benefits resulted, directly or indirectly, from the series of transactions or events, consisting of

(i)             PQ's direction to NSL to borrow the funds under PQ's guarantee,

(ii)            NSL loaning a portion of the funds to SNL,

(iii)           PQ's direction to NSL and SNL to route the borrowed funds to BV by the interposition of the Appellant and GAM,

(iv)           NSL's borrowing of the said funds,

(v)            the incorporation of the Appellant for the sole purpose of acquiring and holding GAM's shares,

(vi)           NSL loaning one-half of the proceeds of this borrowing to SNL for the purpose of purchasing shares of the Appellant,

(vii)          SNL using the proceeds of its loan from NSL to purchase shares of the Appellant;

(viii)         NSL using the remaining one-half of the borrowed funds to purchase shares of the Appellant,

(ix)            the incorporation of GAM,

(x)             the Appellant using the proceeds from these two share issues to purchase shares of GAM,

(xi)            GAM using the proceeds of it share issue to the Appellant to make a loan to BV,

(xii)           NSL using $1,813,440 of its own resources to purchase shares of the Appellant,

(xiii)          the Appellant using the proceeds of that share issue to purchase further shares of GAM, and

(xiv)         GAM using the proceeds of its further share issue to the Appellant to make a loan to PTL,

within the meaning of paragraph 245(3)(b) of the Income Tax Act,

(j)             that the incorporation of the Appellant and GAM and the Appellant's subscription for the shares of GAM were avoidance transactions, within the meaning of paragraph 245(3)(b) of the Income Tax Act, in that they could not reasonably be considered to have been undertaken or arranged for bona fide purposes other than to obtain the tax benefits, and

(k)            that the said avoidance transactions resulted, directly or indirectly, in a misuse of subsection 15(8) of the Income Tax Act, within the meaning of subsection 245(4) of the Act, because this subsection was not intended to be used by a corporation as a means to thwart the application of subsection 15(2) of the Act where the source of the funds is from a resident Canadian corporation.

12.            Alternatively, he says that all of the foregoing transactions, viewed by themselves, were avoidance transactions, within the meaning of paragraph 245(3)(a) of the Income Tax Act, because they could not reasonably be considered to have been undertaken or arranged primarily for bona fide purposes other than to obtain the said tax benefits, and because they indirectly resulted in the said tax benefits.

...

B.            ISSUES TO BE DECIDED

16.            He says that the issues in this appeal are, as follows:

(a)            whether there were tax benefits which the Appellant and BV and PTL obtained from the said transactions, within the meaning of subsection 245(1) of the Income Tax Act, and if so, what they were,

(b)            whether these tax benefits resulted from the series of transactions consisting of the said transactions within the meaning of subsection 245(2) and paragraph 245(3)(b) of the Income Tax Act, or alternatively, from the individual transactions constituting the series, within the meaning of paragraph 245(3)(a) of the Act,

(c)            whether the said transactions, or any of them, were avoidance transactions, i.e. whether they could not reasonably be considered to have been undertaken or arranged primarily for bona fide purposes other than to obtain the tax benefits, within the meaning of paragraphs 245(3)(a) and (3)(b) of the Income Tax Act,

(d)            if the said transactions were avoidance transactions, whether they may reasonably be considered to have resulted, directly or indirectly, in a misuse of subsection 15(8) or subparagraph 95(2)(a)(ii) of the Income Tax Act or in an abuse having regard to the provisions of the Act read as whole, and

(e)            assuming that the foregoing questions are answered in the affirmative, whether a denial to the Appellant and to BV and PTL of those tax benefits was reasonable in the circumstances by including in the Appellant's income under Part I of the Income Tax Act the interest received by GAM from BV and PTL and by assessing the Appellant for withholding tax under Part XIII of the Act for failing to deduct or withhold and remit to the Receiver General of Canada the tax payable by BV and PTL in respect of the amounts of the loans made by GAM to BV and PTL.

C.             STATUTORY PROVISIONS AND REASONS OF THE RESPONDENT

17.            He relies upon inter alia paragraph 12(1)(c), subsections 15(2), 15(2.1), 17(1) and 90(1), subparagraph 95(2)(a)(ii), subsections 112(1), 113(1) and 212(2), paragraph 214(3)(a), subsections 215(1), 215(6), 245(1), 245(2), 245(3), 245(4) and 245(5) of the Income Tax Act.

18.            He says that the following four tax benefits were obtained from the said transactions, within the meaning of subsection 245(1) of the Income Tax Act;

(1)            the deduction by NSL of the interest payable on the said loan from arm's length parties under PQ's guarantee,

(2)            SNL's deduction of the interest payable on the said loan from NSL,

(3)            the avoidance of the inclusion of BV's and PTL's interest payments in computing the Appellant's income under paragraph 12(1)(c) of the Act which the Appellant would have earned, had it made the loans directly to BV and PTL, and

(4)            the avoidance of the inclusion in BV's and PTL's income of the amounts of the loans and thereby their liability for withholding tax in them under Part XIII of the Income Tax Act by virtue of subsections 15(2), 15(2.1) and 212(2) and paragraph 214(3)(a) of the Act and the avoidance of the Appellant's liability under subsection 215(1) to deduct or withhold and to remit to the Receiver General of Canada the withholding tax payable by BV and PTL under Part XIII of the Act.

[13]          In the course of argument it became apparent that there are a number of categories on which the Appellant seeks to examine in the examination for discovery to which the Respondent objects. These include:

1.              The opinions of various civil servants as to the possible success of the assessment in litigation;

2.              Opinions relating to "risk management".

3.              The opinions and discussions of various civil servants respecting amendments to section 17 of the Income Tax Act, or a moratorium respecting it, which might relate to situations similar to the matters alleged here;

4.              The reviews of the unrelated third parties' situations;

5.              Various policy matters in the Department of National Revenue or the Department of Finance;

6.              How the Appellant is distinguished from other taxpayers so that it was determined to assess this Appellant;

7.              How the "template" of the Respondent respecting this matter was developed and was arrived at in or from other cases;

8.              Inter-office or civil servant memos respecting the above;

9.              Opinions and memoranda relating to "interest expense" and the "Mintz Committee" memoranda;

10.            Opinions or material respecting other G.A.A.R. cases and G.A.A.R. issues generally, being dealt with by the Respondent, and information respecting meetings of civil servants as to the impact of various extraneous matters on this case;

11.            Meetings respecting TSO's and budgets.

In the Court's view, all of these matters are irrelevant to the assessment in issue and the refusals to answer are affirmed. For these reasons, the motion described in paragraph [1] hereof is dismissed.

[14]          In the course of hearing argument on the motion, the matter of the sealed material filed by the Appellant in this Court was reviewed by the parties and the Court gave an Order from the bench respecting them. On the basis of what has been decided respecting the motion described in paragraph [1] the Court further Orders as follows:

1.              The documents will remain sealed until further Order of this Court;

2.              In the event that, before trial, either counsel wishes any documents so sealed to be removed or redacted, that party may bring a motion for such purpose.

[15]          Costs respecting the motion are in the cause.

Signed at Ottawa, Canada this 14^th day of February, 2001.

"D.W. Beaubier"

J.T.C.C.

COURT FILE NO.:                                                 1999-3111(IT)G

STYLE OF CAUSE:                                               Silicate Holdings Limited v. The Queen

PLACE OF HEARING:                                         Toronto, Ontario

DATE OF HEARING:                                           February 8 and 9, 2001

REASONS FOR ORDER BY:                               The Honourable Judge D.W. Beaubier

DATE OF ORDER:                                                February 14, 1002

APPEARANCES:

Counsel for the Appellant:                                  Susan L. Van Der Hout

                                                                                Florence Weinstock, Student-at-Law

Counsel for the Respondent:                              John Shipley

                                                                                Luther P. Chambers, Q.C.

COUNSEL OF RECORD:

For the Appellant:                

Name:                                                                      Susan L. Van Der Hout

Firm:                                                                        Osler, Hoskin & Harcourt

                                                                                Toronto, Ontario

For the Respondent:                                             Morris Rosenberg

                                                                                Deputy Attorney General of Canada

                                                                                Ottawa, Canada

1999-3111(IT)G

BETWEEN:

SILICATE HOLDINGS LIMITED,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Motion heard on February 8 and 9, 2001 at Toronto, Ontario by

the Honourable Judge D.W. Beaubier

Appearances

Counsel for the Applicant:                   Susan L. Van Der Hout

                                                          Florence Weinstock, Student-at-Law

Counsel for the Respondent:                John Shipley

                                                          Luther P. Chambers, Q.C.

ORDER

          The Appellant's motion dated January 24, 2001 is dismissed in accordance with the attached Reasons for Order.

Signed at Ottawa, Canada this 14^th day of February, 2001.

"D.W. Beaubier"

J.T.C.C.