Giles,
A.S.P.:—There
are
before
me
two
motions.
The
first
in
time
was
filed
by
the
Crown
seeking
an
order
requiring
the
plaintiffs
to
resubmit
to
an
examination
for
discovery
to
answer
questions
refused
and
to
pay
the
cost
of
reattendance.
The
second
motion
is
one
by
the
plaintiffs,
styled
"counter-motion",
seeking:
(a)
to
dismiss
the
defendant's
motion,
(b)
requiring
the
defendant
to
accept
an
amended
statement
of
claim,
(c)
requiring
the
defendant
to
proceed
to
trial
without
any
further
escalation
of
costs
and
obstruction,
(d)
requiring
the
defendant
to
pay
the
costs
of
the
counter-motion
“and
any
other
costs
that
may
arise
from
the
obstructive
actions
of
the
defendant",
(e)
such
order
as
this
Court
considers
just,
(f)
the
exclusion
of
the
use
of
case
law
in
the
ensuing
trial,
(g)
requiring
the
defendant
to
deal
only
with
the
facts
of
the
case
up
to
and
including
the
year
1986,
(h)
requiring
the
explicit
exclusion
of
any
reference
to
subsequent
years,
etc.
Dealing
with
the
defendant's
motion,
the
Rules
of
the
Federal
Court
(copies
of
which
are
available
at
the
various
libraries
of
the
Federal
Court
and
may
be
available
for
consultation
at
local
court
libraries)
as
amplified
by
the
reasons
for
the
decided
cases,
provide
that
a
party
attending
to
be
discovered
is
to
answer
all
questions
which
lead
or
may
lead
to
the
discovery
of
facts
which
may
be
relevant
to
the
action.
This
action
involves
“farming
losses".
The
courts
have
held
that
in
determining
whether
the
farming
was
carried
on
for
profit
or
with
reasonable
expectation
of
profit,
which
fact
it
would
be
necessary
to
find
if
the
plaintiff
is
to
succeed
in
this
case,
one
should
look
at
the
history
of
the
operation.
Thus,
questions
as
to
the
plaintiff's
farming
business
for
a
decade
or
so
centred
on
the
tax
year
in
question
may
well
be
relevant
and
should
be
answered.
The
defendant's
submissions
concentrated
on
the
period
after
1986
and
I
have
some
doubt
whether
questions
147
to
150
are
after
1986.
The
plaintiff
however,
in
paragraph
(9)
of
his
counter-motion,
implies
that
matters
before
1986
are
relevant.
It
there-
fore
does
not
matter
whether
those
questions
relate
to
a
period
before
or
after
1986.
All
the
questions
will
be
ordered
answered
and
the
plaintiff
will
be
ordered
to
reattend
to
answer
the
questions
at
a
time
and
place
to
be
agreed
between
the
parties.
If
no
time
and
place
have
been
agreed
by
January
10,
then
the
defendant
will
be
allowed
to
designate
a
time
and
place
for
the
reattendance
and
give
the
plaintiff
seven
days'
notice
thereof.
With
regard
to
the
plaintiff's
counter-motion,
paragraph
(a)is
dismissed
for
the
reasons
set
out
in
deciding
the
defendant's
motion.
Paragraph
(b)
I
take
to
be
a
motion
for
leave
to
file
an
amended
statement
of
claim.
The
proposed
amended
statement
of
claim
has
been
submitted.
The
defendant
does
not
oppose
the
filing
of
such
a
claim
provided
paragraphs
(o),
(r)
and
the
last
thought
of
paragraph
2
are
omitted.
Paragraph
(o)
is
objected
to
because
the
fact
that
the
Minister
did
not
reassess
other
businesses
is
irrelevant.
I
agree
that
the
comparison
is
irrelevant.
However,
the
paragraph
contains
other
allegations,
namely
that
the
reassessment
was
unfair,
unjustified
and
discriminated
by
only
allowing
one
year
from
the
farm
purchase
to
make
a
profit.
If
the
paragraph
had
alleged
the
Minister
was
wrong
it
might
be
a
proper
pleading.
Paragraph
(o)
will
be
struck
with
leave
to
file
a
further
amended
statement
of
defence
by
January
12
if
so
advised,
with
a
paragraph
alleging
specific
incorrectness
in
allowing
only
one
year
to
make
a
profit.
Paragraph
(r)
should
not
be
allowed
because
it
is
irrelevant
and
vexatious.
The
last
few
words
of
paragraph
2
seek
a
refund
to
the
plaintiff
of
all
tax
fraudulently
charged
plus
interest.
I
doubt
that
the
plaintiff
would
be
satisfied
with
a
refund
of
the
amounts
fraudulently
charged
as
opposed
to
the
amounts
improperly
charged
if
any.
However,
once
paragraph
(r)
has
been
struck
out,
there
is
no
fraud
alleged
in
the
claim
and
the
last
portion
of
paragraph
2
lacking
factual
foundation
will
be
struck.
With
regard
to
paragraph
(c)
of
the
counter-motion,
there
is
no
indication
of
any
unnecessary
escalation
of
costs
or
obstruction
by
the
defendant.
This
motion
was
brought
by
the
plaintiff.
The
defendant's
motion
was
brought
because
the
plaintiff
refused
to
answer
questions,
and
the
reattendance
are
necessary
because
of
the
refusal.
Paragraph
(d)
requests
costs
of
this
motion
and
costs
that
may
arise
from
the
obstructive
actions
of
the
defendant.
The
costs
of
future
actions
will
be
dealt
with
as
they
arise.
The
costs
of
the
defendant's
largely
successful
motion
should
be
paid
by
the
plaintiff
to
the
defendant.
The
costs
of
this
motion
in
which
the
defendant
is
substantially
successful
should
also
be
paid
by
the
plaintiff
to
the
defendant.
The
law
since
the
11th
century
has
been
largely
recorded
in
the
reports
of
decided
cases.
There
is
absolutely
no
way
that
a
case
can
be
decided
in
this
country
without
allowing
the
parties
to
refer
to
the
case
law
when
necessary.
Paragraph
(f)
will
therefore
be
refused.
For
the
reasons
set
out
with
regard
to
the
defendant's
motion,
paragraphs
(g)
and
(h)
are
refused.
Order:
1.
The
plaintiff
is
to
reattend
to
answer
the
questions
listed
below,
at
a
time
and
place
agreed
between
the
parties.
If
no
agreement
can
be
reached
by
January
10,
1994,
as
to
a
time
and
place,
a
time
and
place
may
be
designated
by
the
defendant.
If
the
defendant
designates
the
time
and
place
he
shall
give
the
plaintiff
seven
days’
notice
thereof.
The
plaintiff
shall
pay
his
own
costs
of
reattendance
and
the
costs
of
reattendance
of
counsel
for
the
defendant,
which
shall
not
include
any
costs
with
respect
to
transportation
other
than
in
Belleville.
The
questions
to
be
answered
are
those
refused,
namely
those
numbered
in
the
transcript:
124,
126-27,
135,
137-38,
141,
143,
144-45,
147-50,
172-77,
179-80.
2.
The
plaintiff
may
file
an
amended
statement
of
claim
substantially
in
the
form
of
the
one
in
the
materials
filed
in
the
counter-motion
but
without
paragraphs
(o)
and
(r)
and
without
that
part
of
paragraph
2
reading
“and
all
income
tax
fraudulently
charged
on
the
interest
be
refunded
to
the
plaintiff".
The
amended
statement
of
claim
may
contain
specific
allegations
of
incorrectness
in
allowing
only
one
year
to
make
a
profit.
Any
amended
statement
of
claim
is
to
be
filed
by
January
12,
1994.
3.
The
remainder
of
the
plaintiff's
counter-motion
is
dismissed.
4.
The
plaintiff
shall
pay
the
defendant's
costs
of
both
motions
in
any
event
of
the
cause.
Crown's
motion
allowed.
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