Date: 20120308
Docket: A-132-11
A-133-11
Citation:
2012 FCA 85
CORAM: BLAIS
C.J.
EVANS
J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
KANNIAPPA (KEN) REDDY
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Vancouver, British Columbia, on March 8,
2012)
LAYDEN-STEVENSON
J.A.
[1]
The
appellant appeals from an interlocutory order of Justice Bowie (the judge) of
the Tax Court of Canada (Tax Court). The judge dismissed the appellant’s
request for an order requiring the respondent’s nominee on examinations for
discovery (discovery) to answer a number of questions. The judge’s reasons are
reported at 2011 TCC 161. In our view, the appeals must be dismissed.
[2]
This
matter relates to income tax and GST reassessments for the 2000, 2002 and 2003
taxation years. The appellant appealed both the income tax and GST reassessments
(the reassessments) to the Tax Court. His appeals to this Court from the
judge’s interlocutory order were consolidated by order of Nadon J.A. dated June
9, 2011. A copy of these reasons will be placed in each file.
[3]
In the Tax
Court, the Crown’s replies enumerated seven assumptions with respect to the
appellant’s income tax notice of appeal and thirty-three assumptions with
respect to the appellant’s GST appeal. At discovery, the Crown objected to a
number of questions asked by the appellant. In effect, those questions sought
to have the nominee pinpoint where each factual assumption was recorded in the
produced documents. Although the Crown objected, it offered an undertaking to
answer in writing. The appellant refused and brought his motion.
[4]
The judge
framed the issue as “whether the questions, as formulated, are fair.” He
acknowledged that the appellant was entitled to question whether, in fact, each
assumption was made because of the potential impact as to which facts the
appellant must disprove (judge’s reasons at para. 4). The crux of the judge’s
determination may be succinctly stated. The form of the questions was
objectionable since it constituted an unfair memory test that required the
nominee to memorize the many assumptions. The judge decided that the
sought-after information should be broken down into questions such as asking
about each assumption, whether the assumption was made, and where it was
recorded in the documents. Since discoveries were ongoing, counsel was free to
put the questions in proper form and elicit the information.
[5]
The
appellant’s general theory is that the Crown did not actually make all of the
assumptions pleaded. Therefore, through the questions, he sought to obtain
admissions in order to avoid bearing the burden of demolishing the assumptions.
The appellant alleges that the judge erred: (a) in finding that the questions
were compound questions; (b) by failing to give effect to the “liberal
approach” to discovery; and (c) by controlling the way counsel conducted
discovery by requiring counsel to cross-examine. According to the appellant,
the relevant standard is whether the questions are proper, not whether they are
fair. Further, since the questions are: (a) not irrelevant or directed solely
to credibility; (b) privileged; or (c) asked in bad faith, the judge erred in
dismissing the motion.
[6]
The
applicable standard of review with respect to the judge’s determination is
palpable and overriding error: Grand River Enterprises Six Nations Ltd. v. R.,
2011 FCA 121 (Grand
River) at
para. 8.
[7]
In our
view, the judge’s determination was not based on his characterization of the
questions as compound questions and we need not comment further on this issue.
The judge’s operative finding was that the questions were unfair because they
rolled multiple inquiries into one. The Court can decline to compel answers on
the basis that the questions are unfair or overly broad. In this respect, the
appellant is referred to Apotex Inc. v. Wellcome Foundation Ltd., 2008
FCA 131 at para. 3; Grand River at para. 18; and AstraZeneca Canada
Inc. v. Apotex Inc., 2008 FC 1301 at para. 16.
[8]
As for the
allegation that the judge required counsel to cross-examine, in our view, the
judge did nothing other than require the questions to be unpacked, without
prescribing a specific form. His use of the term “seriatim” means simply
“in a series” as opposed to a particular series. The comment flows from his
central conclusion on fairness. The questions, to be fair, must be unpacked,
but not necessarily in a particular order.
[9]
The
appellant has not demonstrated any palpable and overriding error on the part of
the judge, nor have we been able to find any. Nor are we persuaded that the
judge’s decision is so clearly wrong as to amount to an injustice. Consequently,
the appeals will be dismissed with costs in the amount of $2,500, inclusive of
disbursements and applicable taxes, payable forthwith.
"Carolyn Layden-Stevenson"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-132-11
and A-133-11
STYLE OF CAUSE: Kanniappa
(Ken) Reddy v. Her Majesty The Queen
PLACE OF HEARING: Vancouver,
British Columbia
DATE OF HEARING: March 8, 2012
REASONS FOR JUDGMENT OF THE
COURT BY: BLAIS
C.J., EVANS AND LAYDEN-STEVENSON JJ.A.
DELIVERED FROM THE BENCH BY: LAYDEN-STEVENSON
J.A.
APPEARANCES:
|
Mr. Timothy W. Clarke
|
FOR
THE APPELLANT
|
|
Mr. Andrew Majawa
Mr.
Bruce Senkpiel
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Bull,
Housser & Tupper LLP Barristers & Solicitors
Vancouver, B.C.
|
FOR THE APPELLANT
|
|
Myles
J. Kirvan
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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