Date:
20070920
Docket:
T-1926-06
Citation:
2007 FC 935
[ENGLISH TRANSLATION]
BETWEEN:
MINISTER OF NATIONAL
REVENUE
Applicant
and
LA COOPÉRATIVE DE
SERVICES
DES TRAVAILLEURS AUTONOMES
DE L’OUTAOUAIS also known as
COOP HARMONIE PLUS
Respondent
REASONS
FOR ORDER
Pinard J.
[1]
The
respondent, upon its request, is appealing the decision by Prothonotary Richard
Morneau on June 19, 2007, refusing it authorization to have two witnesses
heard, authorization that is required under Rule 371 of the Federal Courts Rules,
SOR/98-106. This rule reads as follows:
|
371.
On motion, the Court may, in special circumstances, authorize a witness to
testify in
court
in relation to an issue of fact raised on a motion.
|
371.
Dans des circonstances particulières, la Cour peut, sur requête, autoriser un
témoin à
témoigner
à l’audience quant à une question de fait soulevée dans une requête.
|
[2]
Furthermore,
the Prothonotary’s order establishes a timeline for the rest of the proceedings
related to the respondent’s application for review of a judicial authorization
granted by this Court on November 6, 2006, under subsection 231.2(3) of the Income
Tax Act, R.S.C. (1985), c. 1 (5th Supp.), (the ITA). This second
part of the order is not truly being challenged, but the timeline that it
includes most of course be amended based on the outcome of the respondent’s
appeal in the first part of the appeal regarding the application of Rule 371.
[3]
As
the Prothonotary’s order applies mutatis mutandis to docket T-1933-06,
between the Minister of National Revenue and the Coopérative québécoise de
formation des travailleurs, also known as Coop Plus, the order in support of
which these reasons have been filed therefore apply mutatis mutandis to
that other docket.
[4]
This
order is issued on the basis of the parties’ written submissions. To require me
to exercise my own discretion, the respondent must demonstrate either that the
Prothonotary’s order deals with an issue that has a decisive influence on the
outcome of the case, or that the Prothonotary committed an obvious error in
exercising his discretionary power. In my opinion, the respondent completely
failed.
[5]
First,
it is obvious that the Prothonotary’s order is purely incidental and that for
all practical purposes, it does not put an end to the dispute, as the
respondent can pursue its motion to review the judicial authorization granted
under subsection 231.2(3) of the ITA and file, if it deems it appropriate,
affidavit evidence, which it has not shown that it is unable to do.
[6]
As
for the Prothonotary’s application of Rule 371, not only do I see no obvious
errors, but I consider it to be altogether well-founded in fact and law. It
appears to me that the Prothonotary assessed the little evidence submitted by
the respondent to rightly conclude that there is a lack of “special
circumstances” that would allow for the two witnesses it designated to be
summoned. It should be recalled that motions must be decided based on
documentary evidence and that deviating from this practice is exceptional. The
burden of demonstrating the existence of special circumstances that might
justify authorization to have a witness heard under Rule 371 falls to the party
applying for that authorization. In this regard, the following decisions
referred to in the Prothonotary’s decision appear to be entirely appropriate: Cyanamid
Canada Inc. v. The Minister of National Health and Welfare (1992), 52
F.T.R. 22 and Glaxo Canada Inc. v. Canada (Minister of National Health and
Welfare) and Apotex Inc. et al. No. 4 (1987), 11 F.T.R. 132.
[7]
For
these reasons, the respondent’s appeal is dismissed, the Prothonotary’s
decision is upheld, and the timeline that it includes is amended by replacing
the date of July 18, 2007, at paragraph 2(a), with October 19, 2007, and by
replacing the date of August 3, 2007, at paragraph 2(b), with November 7, 2007.
[8]
Costs
are awarded against the respondent.
“Yvon
Pinard”
Ottawa,
Ontario
September
20, 2007
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