Date: 20070413
Docket: T-1456-05
T-1457-05
Citation: 2007
FC 390
Vancouver, British
Columbia,
April 13, 2007
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
THE
MINISTER OF NATIONAL REVENUE
Applicant
and
WILLIAM ROBERT KERBY
JACQUELINE JEANNE KERBY
Respondents
REASONS FOR ORDER AND ORDER
I. Background
[1]
This case
involved two motions for contempt orders which were scheduled for a one-day
hearing. To that end counsel for both parties, the Respondents and their
witness, and one Crown witness were present. However, counsel for the
Respondents made a surprise preliminary objection to the admissibility of
affidavits showing personal service of Justice Snider's Compliance Orders of
October 31, 2005, on the Respondents in Florida.
[2]
These
reasons deal with my conclusion that the objection was well-founded.
[3]
Rule
470(1) of the Federal Courts Rules, SOR/98-106 (the Rules), provides as
follows:
|
470. (1) Unless the Court directs otherwise,
evidence on a motion for a contempt order, other than an order under
subsection 467(1), shall be oral.
|
470. (1) Sauf directives contraires
de la Cour, les témoignages dans le cadre d’une requête pour une ordonnance
d’outrage au tribunal, sauf celle visée au paragraphe 467(1), sont donnés
oralement.
|
[4]
Jack
Lippman is a process server in Florida and his affidavits indicate
that on November 15, 2005, he personally served each Respondent with a copy of
the Compliance Order which bore their name. However, instead of calling Mr. Lippman
as a witness to give oral testimony and be cross-examined, counsel for the
Minister of National Revenue (the Minister) introduced two affidavits sworn by him
on November 16, 2005.
[5]
The left
side of the jurat on each affidavit reads as follows:
SWORN before me at the City of Fort Lauderdale, in the State of Florida, USA, this 16th day of November,
2005.
This statement is followed by the signature of Susan
Rosenberg and a stamp which shows her commission number as a notary public, the
expiry date of her appointment and the fact that she is bonded. Mr. Lippman's
signature appears on the right in each affidavit.
[6]
Against
this background, counsel for the Respondent made the following submissions:
(i) That inconvenience
does not excuse the Minister from calling the process server as a witness to give
oral testimony in compliance with Rule 470. In this regard, counsel relied on
Justice Dawson's decision in Canada (Minister of National Revenue – M.N.R.) v. Wigemyr, 2004 FC 930, at para. 13.
There, she said:
Counsel for the Minister attempted to
prove that Mr. Wigemyr had been personally served with Mr. Justice Rouleau's
order by filing an affidavit of service sworn by a process server, Mr.
Houghton. As noted above Rule 470(1) provides that evidence is to be oral at a
contempt hearing, unless the Court otherwise directs. No reasons were given by
counsel for the Minister as to why Rule 470 should not be followed other than
convenience and the fact that the Court generally accepts proof of service by
affidavit. I declined to direct that service of Mr. Justice Rouleau's order
upon Mr. Wigemyr could be proven by affidavit evidence for the following
reasons….
(ii) That notaries
public in Florida are not judicial officials
under section 52(e) of the Canada Evidence Act, R.S. 1985, c. C-5 (the
Act), and therefore affidavits they take are not valid under section 53 of the
Act and not admissible under section 54. The submission is based on provisions
of Chapter 117 of the 2006 Florida Statutes. It is entitled Notaries
Public and provides that they are appointed by the Governor for four-year terms
(s. 117.01(1)) and that they can be suspended by the Governor for specific
misdeeds (s. 117.01(4)). Further, notaries public must be bonded to cover any
harm caused to individuals as a result of breaches of their duties.
(iii) That the affidavits are facially deficient
because subsection 117.05(4)(f) of the Florida Statutes provides that when
notarizing a signature, a notary public shall complete a jurat or notarial
certificate which indicates what type of identification the notary public relied
on to identify the deponent. The identification can be based on personal
knowledge or satisfactory evidence of identity. However, the jurats on the
affidavits of service sworn by Jack Lippman contain no description of how Mr.
Lippman was identified by Ms. Rosenberg.
II. Discussion
[7]
On the
basis of the third submission, I concluded that the affidavits were facially
deficient and ruled them inadmissible. It was therefore not necessary to deal
with the first two submissions. I should note, however, that arranging for a
process server who is out of the jurisdiction to testify by video conference
might be explored as a method of complying with Rule 470.
III. Conclusions
[8]
I accepted
the Minister's counsel's submission that the matter should be adjourned so that
he could reconsider proof of service, and counsel then agreed that the
adjournment should be sine die.
[9]
The
Respondents have apparently incurred the following disbursements for today's
hearing:
a) the cost of their
return flights between Fort
Lauderdale and Vancouver.
b) the cost of their
witness' return flight between Calgary and Vancouver.
c) the
cost of Mr. Kerby's mother's return flight between Saskatoon and Fort Lauderdale. This was necessary so she could look
after the Respondents' three children during the hearing.
[10]
If the
Respondents serve and file an affidavit establishing with exhibited ticket
coupons that these expenses were incurred for this hearing day, the Crown,
after having an opportunity to make submissions, may be ordered to pay those
costs within 30 days of such an order.
ORDER
THIS COURT ORDERS that:
i) The hearing of
this matter is adjourned sine die.
ii) The
question of reimbursement for disbursements for today's hearing is reserved on
the basis described in paragraph 10 of the Reasons.
iii) There
is otherwise no order as to costs.
iv) On consent,
files T-1456-05 and T-1457-05 are consolidated for hearing together pursuant to
Rule 105 of the Federal Courts Rules.
"Sandra
J. Simpson"
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