Couture
C.J.T.C.C.:
This
is
an
application
by
counsel
for
the
Respondent
for
an
authorisation
by
the
Court
to
serve
a
subpoena
on
a
witness
by
serving
it
on
a
reasonable
person
who
lives
with
him,
or
by
leaving
it
in
his
mailbox
or
by
any
other
means
that
the
Court
finds
more
appropriate.
The
appearance
of
this
witness
is
required
by
counsel
for
the
Respondent
with
respect
to
the
appeal
of
Domenico
Scalzo
(informal
procedure)
which
was
heard
in
part
in
Montreal
on
July
14,
1997,
adjourned
to
October
9,
1997
and
adjourned
again
because
the
witness
failed
to
appear
in
both
instances.
The
hearing
of
the
remainder
of
the
appeal
is
scheduled
to
be
heard
in
Montreal
on
April
23,
1998.
Rule
19
of
the
Tax
Court
of
Canada
Rules
(Informal
Procedure)
reads:
19.1(1)
A
party
who
requires
the
attendance
of
a
person
as
a
witness
at
a
hearing
may
serve
the
person
with
a
subpoena
requiring
the
person
to
attend
the
hearing
at
the
time
and
place
stated
in
the
subpoena
and
the
subpoena
may
also
require
the
person
to
produce
at
the
hearing
the
documents
or
other
things
in
the
person’s
possession,
control
or
power
relating
to
the
matters
in
question
in
the
appeal
that
are
specified
in
the
subpoena.
The
Informal
Rules
do
not
provide
for
an
alternative
method
of
serving
a
subpoena
on
a
witness.
At
the
hearing
in
July,
counsel
for
the
Respondent
informed
the
Court
that
he
had
caused
a
subpoena
to
be
served
on
Mr.
Gino
Ventura
who
was
one
of
the
two
shareholders
of
the
corporation
Les
Entreprises
Veral
Inc.
(Veral)
which
had
issued
cheques
to
the
wife
of
the
Appellant,
as
I
understand
the
nature
of
the
assessments,
which
are
the
only
issue
of
the
appeal.
For
reasons
that
will
be
referred
to
later,
the
Court
has
serious
doubt
that
service
of
this
subpoena
was
a
valid
service
under
the
Rules.
Having
been
informed
at
the
July
hearing
that
Mr.
Ventura
was
not
present
in
Court,
the
Court
asked
counsel
if
he
wanted
that
a
warrant
for
his
arrest
as
a
defaulting
witness
be
issued.
This
is
what
counsel
replied:
“Your
Honour,
I
could
very
early
take
the
position
in
this
case
that
because
the
burden
is
on
the
Appellant’s
shoulder,
that
...
I
mean
I’m
ready
to
proceed”
and
the
Court
proceeded
with
the
hearing
of
the
appeal.
After
having
heard
the
Appellant
and
his
wife’s
evidence
and
the
evidence
of
one
Danielle
Houle
of
Revenue
Canada,
counsel
realised
that
the
testimony
of
Mr.
Ventura
could
be
helpful
notwithstanding
the
documentary
evidence
produced
by
the
Appellant
which
together
with
his
wife
and
his
own
evidence
appeared
to
support
his
contention
in
regard
to
the
validity
of
his
appeal.
The
documentary
evidence
is
in
the
nature
of
a
letter
dated
June
21,
1996
addressed
to
Revenue
Canada
in
which
the
Appellant
alleges
that
monies
received
by
his
wife
from
Veral
Inc.
were
a
reimbursement
of
loans
to
the
company
by
her
in
1992,
1993
and
1994
rather
than
unreported
income
as
alleged
by
the
Respondent.
This
letter
was
countersigned
by
Gino
Ventura.
At
the
request
of
counsel
for
the
Respondent,
the
appeal
was
again
adjourned
to
allow
him
to
serve
another
subpoena
on
Gino
Ventura
to
ascertain
his
presence
in
Court
at
a
coming
hearing.
Notices
of
Hearing
were
served
on
the
parties
on
September
8,
advising
them
that
the
hearing
of
the
appeal
would
continue
on
October
9,
1997.
On
October
9,
Gino
Ventura
failed
to
appear
again
and
on
a
motion
by
counsel
for
the
Respondent,
a
warrant
for
his
arrest
was
prepared.
Before
the
warrant
could
be
delivered
to
the
bailiff
for
service,
it
was
discovered
that
this
second
subpoena
had
not
been
served
personally
on
the
Appellant
as
required
by
Rule
19
but
had
been
served
on
his
wife.
(I
have
my
suspicion
that
the
first
subpoena
was
equally
not
validly
served
for
this
same
reason).
In
the
light
of
this
information,
the
warrant
for
arrest
was
cancelled
and
the
Court
adjourned
the
hearing
to
a
date
to
be
determined
later
on.
Under
the
date
of
February
25,
1998,
a
Notice
of
Hearing
was
sent
to
the
parties
advising
them
that
the
hearing
of
the
appeal
was
to
continue
in
Montreal
on
April
23.
On
April
7,
the
Court
received
the
application
of
counsel
for
the
Respondent
requesting
that
permission
be
granted
that
personal
service
be
waived
by
the
Court
since
according
to
the
Affidavit
of
Service
it
had
not
been
possible
to
the
bailiff
to
serve
the
witness
personally.
This
of
course
as
mentioned
before
is
contrary
to
Rule
19.
In
support
for
his
application,
counsel
relied
on
the
provision
of
section
13
of
the
Tax
Court
of
Canada
Act
which
reads:
13.
The
Court
has,
with
respect
to
the
attendance,
swearing
and
examination
of
witnesses,
the
production
and
inspection
of
documents
and
other
matters
necessary
or
proper
for
the
due
exercise
of
its
jurisdiction,
all
such
powers,
rights
and
privileges
as
are
vested
in
a
superior
court
of
record.
In
a
telephone
conference
with
counsel,
the
Court
inquired
as
to
what
supportive
authority
he
could
submit
as
to
the
validity
of
his
request.
The
only
authority
he
could
refer
to
was
his
own
interpretation
of
the
legislation
and
the
Rules.
Regrettably,
this
is
not
an
argument
that
is
acceptable
to
the
Court.
It
would
be
ludicrous
for
the
Court
which
is
specially
authorised
by
Parliament
to
draft
rules
of
procedure
for
the
conduct
of
its
business
to
ignore
its
own
rules
without
proper
authority
to
do
so.
Rule
19
is
quite
precise
in
its
meaning
and
in
the
Rules
governing
the
Informal
Procedure
there
is
no
provision
granting
the
Court
the
authority
to
waive
its
application.
In
its
opinion,
section
13
of
the
Tax
Court
of
Canada
Act
has
application
only
if
the
rules
of
procedure
enacted
by
the
Court
are
silent
on
a
question
of
procedure.
If
the
contention
of
counsel
for
the
Respondent
was
valid,
then
there
would
be
no
need
whatsoever
for
the
Court
to
enact
rules
of
procedure
since
the
Court
could
find
its
authority
to
conduct
its
business
in
the
provisions
of
section
13.
A
specific
provision
in
a
statute
has
priority
in
its
application
over
a
provision
of
general
application.
Therefore
the
application
of
counsel
for
the
Respondent
is
refused.
The
amounts
in
issue
in
this
appeal
as
alleged
unreported
income
are
$2,070
in
1992,
$4,416
in
1993
and
$4,181
in
1994
for
an
additional
aggregate
federal
tax
as
shown
on
the
notices
of
reassessment
for
1993
and
1994
of
less
than
$2,000.
No
legal
principle
that
could
have
some
application
on
other
taxpayers
is
involved.
The
Court
has
no
intention
of
returning
to
Montreal
for
a
fourth
time
which
is
what
would
be
required
if
Gino
Ventura
fails
to
appear
on
the
23rd
of
April.
Whether
he
does
appear
or
not,
the
appeal
will
be
disposed
on
that
date.
After
all
this
is
not
a
matter
where
the
Crown
jewels
are
at
risk.
Motion
dismissed.
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