Dubé,
J.:—This
is
an
appeal
under
Rule
336(5)
of
the
Federal
Court
Rules
from
an
order
of
the
Senior
Prothonotary
dated
September
30,
1988
ordering
the
applicant
to
appear
for
examination
under
oath
on
all
the
facts
alleged
in
his
application
to
vacate
the
direction
of
the
Minister
of
National
Revenue
given
under
subsection
225.2(2)
of
the
Income
Tax
Act.
The
facts
in
question
were
sworn
to
in
affidavits
filed
by
the
two
daughters
of
the
applicant
in
support
of
his
application.
The
Prothonotary
also,
apparently,
ordered
the
cross-examination
of
the
affiants
not
to
be
continued.
The
rule
upon
which
the
respondent
relied
in
her
application
to
the
Prothonotary
is
Rule
332(1)
of
the
Federal
Court
Rules
which
reads
as
follows:
332
(1)
Affidavits
shall
be
confined
to
such
facts
as
the
witness
is
able
of
his
own
knowledge
to
prove,
except
on
interlocutory
motions
on
which
statements
as
to
his
belief
with
the
grounds
thereof
may
be
admitted.
Counsel
for
the
respondent
argued
that
the
two
daughters
were
not
knowledgeable
in
the
affairs
of
their
father
and
could
not
answer
relevant
questions
under
cross-examination.
There
is
a
discovery
procedure
under
Rule
465(18)
providing
that
the
party
examining
may
apply
by
a
motion
to
the
court
for
an
order
requiring
a
witness
who
has
omitted
to
answer
or
has
answered
insufficiently
to
properly
answer
the
questions,
but
there
is
no
similar
affidavit
procedure
providing
for
an
application
by
way
of
motion
for
a
court
order
to
require
the
affiant
to
answer.
Such
a
matter
is
to
be
resolved
by
the
judge
who
will
hear
the
application
on
the
merits,
in
the
instant
case
the
judge
who
will
hear
the
application
to
vacate
under
subsection
225.2(2)
of
the
Income
Tax
Act.
He
will
decide
whether
the
affidavit
is
admissible
and
whether
the
evidence
therein
has
any
probative
value.
Counsel
may
present
their
arguments
at
that
hearing.
In
any
event,
these
two
affiants
and
other
witnesses
may
be
called
to
testify
at
the
225.2(2)
hearing
and
duly
cross-examined
before
the
presiding
judge
who
will
assess
their
credibility.
Witnesses
who
do
not
come
willingly
may
be
called
by
subpoena
under
Rule
333.
The
respondent
also
relies
on
section
93
of
the
Code
of
Civil
Procedure
of
Québec
which
reads
as
follows:
93.
When
a
party
has
filed
an
affidavit
required
by
any
provision
of
this
Code
or
of
the
rules
of
practice,
any
other
party
may
summon
the
deponent
to
be
examined
before
the
judge
or
the
prothonotary
upon
the
truth
of
the
facts
sworn
to
in
the
affidavit.
Failure
to
submit
to
such
examination
entails
the
dismissal
of
the
affidavit
and
of
the
proceeding
which
it
supported.
That
provision
is
somewhat
akin
to
Rule
332(5)
authorizing
the
cross-
examination
of
an
affiant.
Thus,
it
cannot
be
brought
in
under
the
gap
rule.
Moreover,
it
does
not
provide
for
the
other
party
to
apply
by
way
of
an
interlocutory
motion
to
the
court
for
an
order
requiring
the
affiant
to
answer
and
it
most
certainly
does
not
provide
for
a
court
order
requiring
a
person
other
than
the
affiant
(and
the
applicant
is
not
an
affiant)
to
appear.
There
is
no
authority
whatsoever
flowing
from
any
of
the
rules
mentioned
for
the
court
to
order
the
applicant
to
personally
appear
for
examination
or
otherwise
to
have
his
application
to
vacate
dismissed.
In
conclusion,
the
parties
shall
reapply
for
a
new
date
for
the
hearing
under
section
225.2
of
the
Income
Tax
Act
and
produce
at
that
hearing
whatever
witnesses
or
evidence
they
see
fit.
It
will
be
for
the
presiding
judge
to
decide
what
evidence
is
admissible
and
to
appreciate
the
weight
of
such
evidence.
The
applicant
in
his
notice
of
appeal
also
sought
to
be
examined
personally
(presumably
outside
Canada)
under
a
rogatory
commission.
That
branch
of
the
application
was
not
pursued
by
the
applicant.
However,
I
did
refer
counsel
to
the
decision
of
Addy,
J.
in
M.N.R.
v.
Javelin
Foundries,
[1978]
C.T.C.
597,
78
D.T.C.
6409
wherein
he
dismissed
such
an
application
under
circumstances
which
are
somewhat
similar
to
the
facts
of
this
case.
Consequently,
the
order
of
the
Prothonotary
in
Chief
is
rescinded.
The
application
for
a
rogatory
commission
is
denied.
Under
the
circumstances
each
party
will
bear
its
own
costs.
Appeal
allowed.
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