Date: 20080806
Dockets: A-555-06
A-556-06
A-557-06
Citation: 2008 FCA 248
CORAM: NADON
J.A.
PELLETIER
J.A.
TRUDEL
J.A.
Docket:
A-555-06
BETWEEN:
JEAN-LUC
FORTIN
Apellant
and
HER
MAJESTY THE QUEEN
Respondent
Docket:
A-556-06
BETWEEN:
FRANÇOIS
PROTEAU
Appellant
and
HER
MAJESTY THE QUEEN
Respondent
Docket:
A-557-06
BETWEEN:
ROBERTE
BOULANGER FORTIN
Apellant
and
HER
MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
BY THE COURT
[1]
These are
three appeals consolidated from a judgment of Justice Archambault of the Tax
Court of Canada, 2007 TCC 98, dated November 14, 2006, who
dismissed the appeals filed by the appellants against the assessments by the
Minister of National Revenue (the “Minister”) under section 227.1 of the Income
Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (the “Act”) and section 83 of
the Employment Insurance Act, S.C. 1996, c. 23.
[2]
Before
addressing the merits of the appeals, we must deal with the conduct of Justice
Archambault who, again, shirked his duty to provide a single set of reasons and
allow the parties access thereto in a timely manner.
[3]
In this
case, the appellants’ appeal from the Minister’s assessments was heard on
November 7, 2006, and Justice Archambault delivered an oral judgment at the
conclusion of the hearing. He signed a judgment on November 14, 2006 and
filed the written reasons on February 19, 2007, almost three months after
the notice of appeal was filed before this Court.
[4]
Owing to
the belated filing of the reasons, the appellants put the following provision
in their notice of appeal filed on November 30, 2006: [translation] “The appellant reserves the
right to amend this notice, considering that he does not yet have the
transcripts of the oral judgment”.
[5]
It is
important to note that there is no transcript recording the reasons for
judgment delivered orally by Justice Archambault on November 7, 2006.
Consequently, it is impossible to know whether the reasons he signed on
February 17, 2007, differ from those supporting the oral judgment dated
November 7, 2006.
[6]
Recently,
in Micheline Brunet v. Her Majesty the Queen, 2007 FCA 196,
our Court examined the problems caused for the parties by Justice Archambault’s
practice of not remitting the reasons delivered at the hearing to the parties
and amending said reasons after their announcement. After having concluded that
Justice Archambault had not committed any error warranting the Court’s
intervention, here is what our Court said at paragraphs 6 to 14 of its reasons
in Brunet, cited above:
[6]
However, at the hearing, the appellant stressed the fact that, despite repeated
requests, unconditionally supported by the respondent’s counsel, she was
refused a copy of the reasons for judgment of the Tax Court of Canada rendered
orally at the hearing. Instead, she received the reasons for judgment signed
almost seven months later, which are intended to be the reasons for judgment
delivered orally at the hearing of November 23, 2005, but which have been
[translation] “amended for greater
clarity and precision”.
[7]
She alleges herself to be aggrieved by these reasons which, she says, do not
correspond to those given at the hearing in which, again according to her, the
judge granted her certain deductions. The reasons seem to have been amended and
improved to her detriment.
[8]
This refusal to remit a copy of the reasons for judgment rendered orally at the
hearing is simply unacceptable. Aside from the feelings of injustice and
mistrust it engenders in the taxpayer, it prevents the Court of Appeal from
exercising its power of review because it cannot verify the merits of the
appellant’s allegations and the scope of the amendments made seven months later
to the judgment already rendered. The reasons given at the hearing are the
reasons for judgment and the parties are entitled to receive a copy of the
complete transcript upon request.
[9]
In Breslaw v. Canada, 2005 FCA 355, our Court considered what
appears to be the practice occasionally adopted by the Tax Court of Canada of
amending reasons given orally at the hearing. In this case, our Court
recognized the right to edit the reasons delivered at the hearing for grammar
and style, but not the right to modify their substance. At paragraphs 24 and 25,
Mr. Justice Pelletier wrote the following:
[24]
The difficulty arises when the edited version of the oral reasons does not
accord with the original reasons, as recorded in the transcript. While an
appeal is taken from the judgment of the Court and not from its reasons, the
parties nonetheless rely upon the Court's reasons to frame their appeal. As a
result, substantive differences between the reasons given in open court, and
the edited version of those reasons are to be discouraged. A judge is entitled
to edit his reasons for grammar and style so that they read correctly and
fluently. But the addition of topics not raised at the time the oral reasons
were delivered, or the subtraction of topics which were, goes beyond mere
editing for grammar and style. One can readily appreciate that a judge
reviewing his oral reasons after the fact may well feel that they are not the
best statement of his reasoning process. But those are the reasons which were
given to the parties, and it is unfair to them to modify their substance after
the fact.
[25] This is
all the more true where the notice of appeal has been filed before the edited
version of the reasons is released. A litigant who sees matters raised for the
first time in the edited version of the oral reasons may well wonder whether
the reasons are a response to the notice of appeal.
[10]
In response to the appellant’s unsuccessful requests to receive a copy of the
complete transcript of the reasons given orally at the hearing, the clerk of
the Tax Court of Canada provided the following explanation in a letter dated
July 25, 2006:
[translation]
Dear Ms.
Brunet,
I am writing
further to your fax of July 6, 2006.
Please be
advised that, in accordance with its policy, the Tax Court of Canada
provides only the certified transcript of the reasons given orally at the
hearing.
All the
reasons given orally at the hearing are sent to the presiding judge for review
and certification. In this way, the judge may revise and correct clerical
errors before the reasons are given to the parties.
Our contracts
with the court reporting firm stipulate that the transcripts requested must be
remitted to the Court.
[Emphasis added]
[11]
Two important facts emerge from this letter.
[12]
First, the appellant’s request was refused because the reasons were sent to the
judge [translation] “for review
and certification”. It is not the judge’s responsibility to certify the
transcript of the reasons given at the hearing. As in the case of witness
depositions (see, for example, article 327 of the Code of Civil Procedure),
it is the court reporter’s responsibility to certify, in accordance with the
law, the transcript of the recording tapes of the hearing. That is what the
court reporter, Jean Larose, did in this case, with the exception however of
the reasons for judgment rendered at the hearing which were unjustifiably
omitted from the transcript and therefore not included in his certification.
[13] Second, the clerk’s
letter indicates that the reasons were sent to the judge to “correct clerical
errors before the reasons are given to the parties.” This letter and this
Court’s case law do not allow a judge to rewrite or improve his or her reasons.
Nor is the Court allowed to refuse to provide a copy of the reasons as they
were given at the hearing, which must be certified by the court reporter as
being a true copy of what was said at the hearing.
[14]
Even if we do not believe it is necessary to make it clear, we will do so so
that there is no ambiguity. If the situation in this case should reoccur, our
Court, which is deprived in part of the power to effectively exercise its
appellate jurisdiction, will not hesitate to intervene.
[7]
In Brunet,
cited above, the problem arose from the fact that Justice Archambault refused
to allow the appellant access to the transcript of his reasons given orally at
the hearing. In Breslaw, cited above, the same problem occurred, but the
Chief Justice of the Tax Court of Canada intervened to authorize that the
transcript be sent to the appellant. The appellant noticed that the reasons
delivered from the bench did not match the written reasons filed by Justice
Archambault after the notice of appeal had been entered, specifically as
regards one of the issues raised on appeal.
[8]
As appears
from paragraph 12 of the reasons of our Court in Brunet, cited
above, the reasons for judgment delivered at the hearing were not recorded and,
consequently, could not be certified by the court reporter. This same situation
seems to have prevailed in this case during the hearing of the appellants’
appeal before Justice Archambault.
[9]
At
paragraph 13 of the reasons in Brunet, cited above, the Court indicated
that a judge is not allowed to rewrite or improve the reasons he or she
delivered orally. Moreover, at paragraph 14 of the reasons, the Court stated
unequivocally that if such a practice were to reoccur, the Court would not hesitate
to intervene.
[10]
In an
order made on March 31, 2007, in Brian Jenner v. Her Majesty the Queen,
docket A-601-06, Justice Létourneau reiterated the words of our Court in Brunet,
cited above, and stated that Justice Archambault’s refusal to give the parties
access to the transcripts of the reasons delivered from the bench was a [translation] “reprehensible practice.”
[11]
In the
case at bar, the parties did not complain about the fact that Justice
Archambault failed to deliver his reasons before the time for appeal had
expired. Even so, we believe it appropriate and necessary to repeat the warning
the Court gave in Brunet, cited above, namely that Justice Archambault’s
refusal to remit the reasons delivered at the conclusion of the trial to the
parties in a timely manner is not only unacceptable, it brings the
administration of justice into disrepute. The administration of justice is also
compromised by the deletion of the recording or transcript of the reasons given
orally. This practice is quite simply reprehensible.
[12]
Since
Justice Archambault’s refusal to allow the parties access to his reasons in a
timely manner preceded our decision in Brunet, cited above, we are of
the opinion that, for the moment, it will suffice to reiterate the warning we
gave in Brunet, cited above, and send a copy of our reasons to the Chief
Justice of the Tax Court of Canada, so that he may take the measures he
considers appropriate to end this practice.
[13]
With
respect to the merits of the appeals, the Minister’s assessments resulted in the
appellants, as directors of various member companies of the Groupe St-Romain,
being held jointly and severally liable for the source deductions that these
companies failed to remit to the Minister.
[14]
Although
the appellants raised several grounds against the Minister’s assessments in
their notice of appeal, they relied on only one of those grounds before Justice
Archambault. This was the ground embodied in subsection 227.1(3) of the Act,
namely that they had exercised the degree of care, diligence and skill to
prevent the failure—that is, to remit the source deductions to the
Minister—that a reasonably prudent person would have exercised in comparable
circumstances.
[15]
The
appellants, whose counsel received leave to be removed as solicitor of record
by order of this Court dated April 22, 2008, were not present at the
hearing of their appeal. Accordingly, we considered their arguments as they
appeared in the memorandum filed by their counsel.
[16]
In this
memorandum, the appellants advanced only a single argument, as follows: the
conditions for applying subsection 227.1(1) of the Act were not met because the
National Bank had taken effective control of the operations of the companies of
which the appellants were directors, and, more specifically, had taken control
of the disbursements. Thus, according to the appellants, subsection 227.1(3)
did not come into play.
[17]
The
respondent utterly disagrees with the appellants’ point of view. The respondent
submits that the appellants are calling into question the admissions made by
their counsel before the Tax Court of Canada and refers us to the transcript of
the hearing (Appeal Book, vol. III, p. 9), where Mr. Robert Jodoin, counsel for
the appellants, informed Justice Archambault that the only issue before him was
that of the reasonable diligence of the appellants.
[18]
The
respondent claims, and we fully agree, that given the arguments made before the
judge, he was entitled to assume that the other conditions for applying section
227.1 had been met and that the only issue before him was that of reasonable
diligence under subsection 227.1(3) of the Act.
[19]
As regards
this issue, the judge concluded that the appellants had not succeeded in
showing that the Minister’s assessments were incorrect. The judge arrived at
this conclusion because, in his opinion, the National Bank had not taken
control of the operations of the companies of which the appellants were
directors, and the appellants had not taken the necessary measures to prevent
the failure to remit the source deductions to the Minister.
[20]
After
considering the memoranda filed by the parties and the evidence in the record,
we are not satisfied that Justice Archambault committed an error, of either
fact or law, which would allow us to intervene.
[21]
For these
reasons, the appeals will be dismissed with costs.
“M.
Nadon”
“J.D. Denis Pelletier”
“Johanne Trudel”
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