Date: 20070419
Docket: ITA-3436-06
Citation: 2007 FC 418
[ENGLISH
TRANSLATION]
Montréal, Quebec,
April 19, 2007
PRESENT:
Richard Morneau, Esq., Prothonotary
In the matter of
the Income Tax Act,
- and -
In the matter of an assessment or
assessments by the Minister of National Revenue under one or more of the
following acts: The Income Tax Act, the Canada Pension Plan, the Employment
Insurance Act,
Against:
PIERRE
LACHAPELLE
Judgment Debtor
and
B.M.T. 06 CAPITAL CORPORATION
(Bull Market
Trading)
and
TD WATERHOUSE
CANADA INC.
(formerly
Ameritrade Canada)
Third Parties
and
ANIMATION
JL INC.
Mis
en cause
REASONS FOR
ORDER AND ORDER
[1]
This
is a motion by the mis en cause for leave to file two additional affidavits
under Rule 84 of the Federal Courts Rules (the Rules).
[2]
This
motion arises as part of the examination on one of the affiants’ affidavits
that was filed by the Queen (the seizing creditor), within the context of a
garnishment procedure where normally one should consider that the evidence on
the merits of the seizing creditor and the mis en cause was complete at the
time when the examinations on affidavit took place.
[3]
However,
and this is what gives rise to the motion under review, the mis en cause argues
that, on three elements, its examination of affiant Marco Gagnon regarding the
affidavit that he swore in support of the seizing creditor’s application for
the temporary garnishment order raises new facts that came up as a surprise
during that examination. According to the mis en cause, it could not predict that
those answers or elements would be put forward by Mr. Gagnon, hence its motion
so that it can answer them.
[4]
However,
I do not intend to grant this motion by the mis en cause because, upon review,
it appears that paragraphs 5, 8, and 11 of Mr. Gagnon’s affidavit were
sufficiently argued and precise to lead the mis en cause, duringthe stage when
its evidence on the merits was filed, to seek any affiant, including Mr.
Aghiles Kheffache, and thus seek to cover the elements that it is now seeking
to cover. Referring to Mr. Gagnon’s answers during his examination to argue
that those answers provide new, surprising facts can only be seen as an excuse
by the mis en cause regarding the potential insufficiency of its evidence on
the merits. In my assessment, during his examination, Mr. Gagnon merely
elaborated on or specified, without truly providing any relevant new evidence,
the allegations in his affidavit.
[5]
Therefore,
despite the argument by counsel for the mis en cause in Court to demonstrate
its position regarding the presence of new facts that arose by surprise during
Mr. Gagnon’s examination, the written submissions and the authorities filed by
counsel for the seizing creditor still stand in their essential nature.
[6]
Moreover,
the mis en cause did not enclose with its motion record Mr. Robert Landry’s
affidavit, which it wanted to add. The situation is the same with respect to
Mr. Kheffache. As for the latter, even if the mis en cause argues that he is a
third party not under the control of the mis en cause, it did not provide
evidence that it had sought to contact him during its evidence on the merits or
during the introduction of the motion under review so that he could file an
affidavit.
ORDER
The motion by
the mis en cause is therefore dismissed, costs in the cause.
“Richard
Morneau”
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