Bosa Development Corp. v. The Queen, docket 95-2615-IT-G

Date: 20010509

Docket: 95-2615-IT-G

BETWEEN:

BOSA DEVELOPMENT CORPORATION,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Motion heard by telephone conference on May 8, 2001 by the Honourable Judge D. W. Beaubier

Counsel for the Appellant:                  Craig Sturrock and Thomas Bauer

Counsel for the Respondent:              Deborah Horowitz and

Wendy Burnham

Representing Sand Exploration Ltd.:                 Lorne Scott

Representing himself:                                           Alan Lazzari

Order and reasons for order

[1]            Upon the motion of the Respondent and upon hearing counsel for the Respondent and the Appellant, Sand Exploration Ltd., and Alan Lazzari speaking for himself, and upon reviewing the material filed in support of the motion and the Court file:

[2]            This is a motion by the Respondent to examine a representative of Sand Exploration Ltd. ("Sandex") and Alan Lazzari for discovery pursuant to Section 99 of the Rules. Subsections 99(1) and 99(2) read:

99. (1)      The Court may grant leave, on such terms respecting costs and other matters as are just, to examine for discovery any person who there is reason to believe has information relevant to a material issue in the appeal, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation.

(2)            Leave under subsection (1) shall not be granted unless the Court is satisfied that,

(a)            the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person sought to be examined,

(b)            it would be unfair to require the moving party to proceed to hearing without having the opportunity of examining the person, and

(c)            the examination will not,

(i)             unduly delay the commencement of the hearing of the proceeding,

(ii)            entail unreasonable expense for other parties, or

(iii)           result in unfairness to the person the moving party seeks to examine.

[3]            The transcript of the examination for discovery of the Appellant's officer, Natale Bosa, which was filed with the motion, together with the responses to undertakings given, establishes that:

1.              Sandex was doing the detail work respecting the particulars in issue in this appeal.

2.              The examinee was ignorant about this detail and did not inform himself concerning it and, in answer to question 87 said:

So when you refer to this, there's no use for me -- and I'll be very honest with you. For you to tell me to refer to Al Lazzari's notes is meaningless because I had never even seen them. That was for him to report to me and that's the way it was. I am not the type of guy that will sit down and read every document that my company does. You have the wrong guy. To think that it -- and I'm serious. I mean I might as well bring it out because if I keep on telling you every page that I don't know, you might think that I'm totally stupid.

3.              The responses to undertakings indicated essentially that Sandex is the source of this material, that some material is missing, that Sandex cannot confirm some information asked for, that some is undeterminable, and that part of the professional due diligence work respecting these matters required meetings with Sandex.

[4]            Alan Lazzari came to the Appellant with the proposal that the Appellant buy the "seismic data and drilling" for "exploring" and proposed the tax advantage. In these circumstances, Mr. Lazzari was a promoter or salesperson who contacted Sandex. But in Mr. Bosa's words (Q. 32) "Al Lazzari was basically acting for all four companies at the same time because we used to be together and then we split". On Mr. Bosa's testimony and Appellant's counsel's statements, Sandex and Lazzari may have been agents or perhaps a form of trustee for the Appellant.

[5]            Counsel for the Respondent has not attempted to inquire of Sandex or Mr. Lazzari respecting the particulars which it states it wishes to obtain. It must do this so as to satisfy the requirements of paragraph (2)(a) of Rule 99, failing which it cannot succeed.

[6]            Furthermore, as counsel for Sandex pointed out (and respecting which Mr. Lazzari implicitly agreed):

1.              At present the Respondent appears to be on a fishing expedition.

2.              The events in question are years old and questions will very likely require undertakings and adjournments which can be avoided by a proper written questionnaire to Sandex, and to Mr. Lazzari.

[7]            The Respondent has failed to meet the prerequisite contained in paragraph 2(a) and for this reason, the motion is denied.

[8]            Costs of the motion are awarded to the Appellant and, separately, to Sandex in any event of the cause. The costs to Sandex are fixed at $500.00 are to be paid forthwith.

                Signed at Ottawa, Canada, this 9^th day of May, 2001.

"D. W. Beaubier"

J. T. C. C.