Date: 20020123
Docket: T-1662-94
Neutral Citation: 2002 FCT 76
Montréal, Quebec, January 23, 2002
Present: Mr. Richard Morneau, Prothonotary
BETWEEN:
L'ÉPINGLERIE LTÉE,
ARECO INC.,
PAUL MATTE AND STÉPHANE MATTE
Applicants
and
THE MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR ORDER AND ORDER
MR. RICHARD MORNEAU, PROTHONOTARY
[1] This motion by the applicants is dismissed -- without costs notwithstanding the fact that the respondent requested them -- since it must be concluded that there is res judicata on the undertakings made by the respondent during the examination for discovery of his representative, as a result of the Court's decision of April 17, 2000 as upheld on appeal on June 21, 2001.
[2] In her decision of April 17, 2000, Madam Justice Tremblay-Lamer clearly held that the respondent's representative "[Translation] has properly fulfilled the undertakings made during his examination...". This decision was upheld in full by the Federal Court of Appeal in its decision of June 21, 2001. Moreover, the applicants themselves state in capital letters in their notice of motion before us, in paragraph 2:
[Translation] If the judgment of the Court of Appeal [the decision of June 21, 2001] had been in their favour [i.e. in the applicants' favour]. THERE WOULD HAVE BEEN NO NEED TO PRESENT THIS MOTION TODAY.
[3] On the other hand, in the case-management framework, in the interests of advancing this case, it is appropriate to note and to declare that the plaintiffs no longer have access to Rules 238 or 235 in order to proceed with further examinations. The following are the reasons why.
[4] In the first place, this motion, according to the order of October 16, 2001, had to be put down for the general sitting of January 21, 2002, which was not done. In this regard, although they did not have the addresses they were seeking for the purposes of service under Rule 238(2), the applicants could have asked that compliance with Rule 238(2) be dispensed with under Rule 55, in order to adhere to the schedule set out in the order of October 16, 2001.
[5] Secondly, it is now clear from the record that the addresses that were sought are those of former civil servants who had worked on the applicants' file at the time. Once those addresses were obtained, a motion under Rule 238 would have been presented by the applicants. In their letter of January 16, 2002, which has been placed in the record, the applicants state:
[Translation] In fact, it is impossible to comply with Rule 238(b) [sic] and to serve anyone with the copy of the motion until we have obtained the addresses of Messrs. Henri Sanson and Guy Lafleur and Ms. Suzanne Pelletier, addresses that the respondent had nevertheless undertaken to provide to the co-applicants.
[6] However, to proceed with the examination for discovery of these former civil servants would be the equivalent of proceeding anew with the examination of the respondent, which is not provided for under Rule 238. This position does not mean that these former civil servants cannot at some point be summonsed as witnesses at trial. In this regard, the record indicates that the respondent has already undertaken to contact these people if the applicants wish to call them at trial as witnesses. The summonsing of these individuals is an aspect that can be discussed again at the pretrial conference.
[7] This leads us, then, to conclude, in the context of the schedule in the order of October 16, 2001, that the only remaining stage to be completed now is the one in point 3 of that order. In view of the temporary absence of the applicants' representative in the next few weeks, it is appropriate not to modify the schedule provided in this point 3, so the applicants have until March 22, 2002 to file and serve an application for a pretrial conference under Rule 258.
[8] Finally, in view of the absence of the applicants' representative in the next few weeks, and for the purposes of any appeal of the present order under Rule 51, the motion record shall be served and filed on or before March 15, 2002.
Richard Morneau
Prothonotary
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020123
Docket: T-1662-94
Between:
L'ÉPINGLERIE LTÉE,
ARECO INC.,
PAUL MATTE AND STÉPHANE MATTE
Applicants
and
THE MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR ORDER
AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: T-1662-94
STYLE: L'ÉPINGLERIE LTÉE,
ARECO INC.,
PAUL MATTE AND STÉPHANE MATTE
Applicants
and
THE MINISTER OF NATIONAL REVENUE
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 21, 2002
REASONS FOR ORDER AND ORDER BY MR. RICHARD MORNEAU, PROTHONOTARY
DATED: January 23, 2002
APPEARANCES:
Paul Matte
FOR THE APPLICANTS
L'ÉPINGLERIE LTÉE, ARECO INC.,
and PAUL MATTE
Hélène Beaumont
FOR THE RESPONDENT
Leclerc Alie & Associés
Brossard, Quebec
FOR THE APPLICANT
STÉPHANE MATTE
Morris Rosenberg
Deputy Attorney General of Canada
Montréal, Quebec
FOR THE RESPONDENT
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