Date: 19980205
Docket: ITA-3095-97
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 INCOME TAX ACT,
the CANADA PENSION PLAN
and the UNEMPLOYMENT INSURANCE ACT,
AND:
ANNE DUCHESNAY,
Opposing party-judgment debtor.
REASONS FOR ORDER
NADON J.
[1] I was scheduled to hear three motions to oppose in Québec on February 5 and 6, 1998; the purpose of the motions is to have the Court quash four seizures in execution of movable property and two seizures in execution of immovable property carried out in April and May of 1997 on behalf of the federal Crown. The seizures the opposing party, Anne Duchesnay, opposes are the result of assessments by the Minister of National Revenue under one or more of the Income Tax Act, the Canada Pension Plan, the Unemployment Insurance Act and the Employment Insurance Act.
[2] I was also scheduled to hear a fourth motion by the opposing party to challenge the constitutional validity, application or operability of subsections 225.2(2) to 225.2(6) of the Income Tax Act.
[3] The motions to oppose were filed at the Court Registry in Québec on May 7, 1997 and were returnable on July 30 and August 14, 1997. Jacques Bouchard, a Montréal lawyer represented the opposing party.
[4] On July 16, 1997, Mr. Lilkoff of the federal Department of Justice asked that the return of the motions be postponed until August 27, 1997. Mr. Bouchard consented to the application for postponement.
[5] On August 20, 1997, the opposing party filed a notice of a constitutional question concerning subsections 225.2(2), 225.2(3), 225.2(4), 225.2(5) and 225.2(6) of the Income Tax Act. A copy of this notice was served on the Attorney General of Canada and the attorney general of each province in accordance with section 57 of the Federal Court Act.
[6] On August 20, 1997, the opposing party, with the consent of Mr. Lilkoff, asked that the return of the motions be postponed until November 5, 1997. The application for postponement was allowed.
[7] On October 24, 1997, Marie-France LaHaye of the Québec law firm of Corriveau & Associés, acting as agent for Mr. Bouchard, wrote the Administrator of the Court and advised him that the opposing party anticipated that two days of hearings would be required for the motions and that she intended to seek leave of the Court to call witnesses. It should be noted that the opposing party is a lawyer for Corriveau & Associés.
[8] On October 28, 1997, the opposing party filed a motion under Rule 319(4) to call witnesses in order to have them testify in open court.
[9] On October 31, 1997, Mr. Lilkoff, for the federal Crown, filed the affidavits of three witnesses in order to challenge the motion to call witnesses and the application concerning the number of days required to hear the original motions.
[10] On November 3, 1997, Mr. Lilkoff filed a written response to the opposing party"s motions. Mr. Lilkoff specifically requested that the motions to oppose be heard [TRANSLATION] "at an early date due to the urgency of the files".
[11] On November 3, 1997, Ms. LaHaye, still acting for Mr. Bouchard, filed a reply to Mr. Lilkoff"s written representations. On November 4, 1997, Ms. Lahaye filed a supplementary reply.
[12] On November 5, 1997, I dismissed the opposing party"s motion to have witnesses heard in open court. On November 7, 1997, I ordered the opposing party to file the affidavits of the witnesses mentioned in her motion of October 28, 1997 no later than November 20, 1997.
[13] On November 12, 1997, after a telephone conference on the same date, I ordered that the motions to oppose, including the constitutional question, be heard in Québec on February 5 and 6, 1998.
[14] On November 24,1997, I extended the opposing party"s time limit for filing her affidavits until December 4, 1997.
[15] On December 18, 1997, I issued the following direction:
| [TRANSLATION] The Registry may accept the late filing of the affidavits, as the Crown was served within the time allowed. |
|
[16] On January 28, 1998, the opposing party, Anne Duchesnay, filed a notice of change of solicitor. The opposing party"s notice read in part as follows:
| [TRANSLATION] TAKE NOTICE that Anne Duchesnay will be representing herself in place of Jacques Bouchard. |
|
[17] The notice of change of solicitor was served on Mr. Lilkoff in the afternoon of January 29, 1998 (4:18 p.m.).
[18] On January 30, 1998, the opposing party filed a motion seeking leave of the Court to produce a copy of the notice to appeal filed with the Tax Court of Canada, file No. 971484(IT)G, to which the opposing party referred in paragraphs 17 and 35 of her affidavit dated December 4, 1997. I granted this motion on February 4.
[19] At about 3:00 p.m. on February 2, 1998, an employee of the Court Registry in Québec advised me by telephone that Ms. LaHaye had just notified him that the opposing party"s mother-in-law had died and that the opposing party would therefore be unable to attend the hearing scheduled for February 5 and 6, 1998. The employee also advised me that Ms. LaHaye intended to apply for a postponement.
[20] I asked the clerk to advise Ms. LaHaye and Mr. Lilkoff that the motion for postponement would be heard in Québec on February 4 at 3:00 p.m. I also indicated that, if no motion was made, the hearing of the motions to oppose would proceed at 9:00 a.m. on February 6, 1998.
[21] At about 3:50 p.m. on February 3, 1998, Ms. LaHaye advised the same Registry employee that despite the Court"s direction that a motion be returnable at 3:00 p.m. on February 4, the firm of Corriveau & Associés did not consider it necessary and no member of the firm would accordingly appear in court on February 4. Only Mr. Lilkoff appeared in court at 3:00 p.m. on February 4, 1998. After a discussion with Mr. Lilkoff, I decided to adjourn the hearing of the motions to oppose. The hearing will be set, peremptorily as regards the opposing party, for two days during the week of March 16, 1998. I asked Mr. Lilkoff to contact Ms. Duchesnay to agree on the two days if possible. If they fail to reach an agreement, I will set the days of the hearing.
[22] Mr. Lilkoff asked me to award his travel and accommodation expenses and the costs of a motion, which I did.
[23] It should be noted that even if no lawyer from the firm of Corriveau & Associés could attend at 3:00 p.m. on February 4, Registry employees advised me that a lawyer did appear at about 9:30 a.m. on February 5, 1998, apparently [TRANSLATION] "to attend" the hearing of the motions to oppose. The lawyer was advised that the hearing of the motions to oppose had been adjourned until the week of March 16, 1998 and that Mr. Lilkoff would contact them regarding it.
[24] In closing, I wish to mention that on November 12, 1997 I tried to set the hearing of the motions to oppose during the two weeks before Christmas. Despite the Crown"s objections, the hearing was set for February 1998 in order to accommodate Mr. Bouchard"s schedule.
Marc Nadon
Judge
QUÉBEC, QUEBEC
February 5, 1998
Certified true translation
M. Iveson
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 INCOME TAX ACT, the CANADA PENSION PLAN and the UNEMPLOYMENT INSURANCE ACT,
AND:
ANNE DUCHESNAY,
Opposing party-Judgment debtor.
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: ITA-3095-97
| STYLE OF CAUSE: 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 INCOME TAX ACT, the CANADA PENSION PLAN and the UNEMPLOYMENT INSURANCE ACT, |
AND:
Anne Duchesnay,
Opposing party-judgment debtor.
PLACE OF HEARING: Québec
REASONS FOR ORDER BY: The Honourable Mr. Justice Nadon
DATED: February 5, 1998
APPEARANCE:
Stéphane Lilkoff For the Minister of National Revenue
SOLICITORS OF RECORD:
DEPARTMENT OF JUSTICE
Civil Litigation and
Real Property Law (Quebec) Section
239 Wellington St., Office 243
Ottawa, Ontario K1A 0H8 For the Minister of National Revenue
CORRIVEAU, CORRIVEAU
Place de la Capitale
150, boul. René Lévesque Est
18e étage, bureau 1800
Québec, Quebec G1R 5B1 For the opposing party-judgment debtor
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