Date: 20071203
Docket: T-687-05
Citation: 2007 FC 1269
BETWEEN:
THE
MINISTER OF NATIONAL REVENUE
Applicant
and
KEVIN
WILLIAM MIDDLETON
Respondent
REASONS FOR ORDER
HENEGHAN, J.
[1]
By Order
dated April 7, 2006, in Canada (Minister of National Revenue – M.N.R.) v.
Middleton, 2006 FC 455, Mr. Kevin William Middleton (the
"Respondent") was found in contempt of an Order of this Court, issued
by Mr. Justice Kelen, dated May 9, 2005. The terms of the Order issued on April
7, 2006, provide as follows:
1.
The Respondent
is found to be in contempt of the Order dated May 9, 2005, pursuant to
Rule 466(1)(b) of the Federal Courts Rules, SOR/98-106;
2.
A fine of
$2,000.00 is imposed upon the Respondent, payable within thirty (30) days
of service upon him of this Order;
3.
The
Respondent is to pay costs in the amount of $1,000.00 within thirty (30) days
of service upon him of this Order;
4.
If the
Respondent fails to pay the fine of $2,000.00 and costs of $1,000.00 within
thirty (30) days of being served with this Order, the Court imposes a
sentence of fifteen (15) days imprisonment for default of payment of the fine
and a sentence of fifteen (15) days imprisonment for default of payment of the
costs, such sentences to run consecutively.
[2]
By an ex
parte notice of motion filed by the Minister of National Revenue (the
“Applicant”) on November 30, 2007, the Applicant seeks an Order for the
issuance of a Warrant of Committal against the Respondent, and that he be
arrested and serve the default time set by this Court in the Order of April 7,
2006. A penalty hearing was held at Calgary, Alberta and Vancouver, British Columbia, by teleconference on
Thursday, October 4, 2007. Three witnesses were called by the Applicant, as
follows:
i)
Mr.
William Traptow;
ii)
Mr.
Michael Munro;
iii)
Ms. Tove
Mills
[3]
Mr. Traptow
is a process server, working in the City of Victoria, British Columbia. Mr. Traptow
testified that, after identifying Mr. Middleton, he personally served him with
a copy of the Reasons for Order and Order that were issued in this action
on April 7, 2006. A copy of the Reasons for Order and Order was marked as
Exhibit 1, Tab 2 of the Book of Exhibits. Service was effected on April 21,
2006.
[4]
Mr. Munro
is a Collections Officer with the Canada Revenue Agency in the Vancouver Island tax service office. He
testified that he served a package of documents upon Mr. Middleton at his home
address, on August 28.
[5]
Ms. Mills
is the Collections Officer who assumed management of the Canada Revenue Agency
file in relation to Mr. Middleton, in July 2007. She testified that she had
prepared the package of materials that was served by Mr. Munro upon Mr.
Middleton. That package included several documents, of which the following are
the most relevant:
i)
a copy of
the Reasons for Order and Order dated April 7, 2006 (Exhibit 1);
ii)
a copy of
the Applicant’s Motion Record in relation to the ex parte motion for the
issuance of a warrant for the arrest of the Respondent (Exhibit 6); and
iii)
a copy of
a letter dated August 2, 2007, advising Mr. Middleton about the hearing
scheduled for October 4, 2007.
[6]
Ms. Mills
testified that, according to her review of the files maintained by her office,
Mr. Middleton had not satisfied the requirements of the Compliance Order
of May 9, 2005, nor had he satisfied the terms of the Order of April 7, 2006,
that is, he had failed to produce the information requested and he had failed
to pay the fine and costs imposed by the Order of April 7, 2006.
[7]
Ms. Mills
testified that the only response from the Respondent, in respect of the Order
of May 9, 2006, was the delivery of a "user agreement and copyright
infringement." This document was entered as Exhibit 4. Ms. Mills testified
that this document was not responsive to the Order of May 9, 2005.
[8]
The
Applicant is seeking the issuance of a Warrant of Committal for contempt
because the Respondent has failed to pay the fine of $2,000.00 and costs in the
amount of $1,000.00, pursuant to the Order issued by this Court on April 7,
2006.
[9]
Having
regard to the evidence of Mr. Munro and Ms. Mills, I am satisfied that the
Respondent was given notice of the Applicant's ex parte motion to seek a
Warrant of Committal. The Respondent was served with the motion record and
related documents. The Respondent did not appear.
[10]
Having
regard to the evidence of Mr. Traptow, I am satisfied that Mr. Middleton was
personally served with the Order of April 7, 2006. Finally, having regard to
the evidence of Ms. Mills, I am satisfied that the Respondent has failed
to pay the fine in the amount of $2000.00 and costs in the amount of $1.000.00.
[11]
Accordingly,
I am satisfied that the Applicant has shown that an Order should be granted
pursuant to Rule 471 of the Federal Courts Rules, SOR/98-106, for the
issuance of a Warrant of Committal. It is emphasized that this Warrant of Committal
is being issued because the Respondent defaulted in satisfying the terms of the
Order of April 7, 2006, by which a monetary penalty was imposed, together with
an order for the payment of costs. The Order of April 7, 2006, provided that in
default of payment of the fine and payment of the costs, a term of imprisonment
would be imposed.
[12]
The
Applicant seeks costs in relation to the present matter. I assess costs in the
amount of $1,000.00.
"E. Heneghan"
Vancouver, British Columbia
December
3, 2007
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