Lamarre
Proulx
T.C.J.:
This
is
a
motion
made
for
the
purpose
of
obtaining
permission
that
an
important
witness
for
the
Appellant,
Mr.
Eric
Waltz,
the
Appellant’s
father,
testify
not
in
the
immediate
presence
of
counsel
or
of
the
presiding
judge
in
Montreal,
but
in
Germany
by
means
of
a
video-conference.
Everyone
involved
in
the
court
process
would
attend
the
examination
in
Montreal.
Mr.
Eric
Waltz
would
attend
the
examination
in
Germany.
An
affidavit
of
the
Appellant
was
filed
with
the
Court
before
the
hearing
of
this
motion.
It
stated
that
his
father,
Mr.
Eric
Waltz,
resided
in
Germany
and
was
too
old
and
too
ill
to
travel
to
Canada.
It
also
stated
that
Mr.
Waltz
spoke
German
and
a
little
English.
The
affidavit
did
not
state
the
age
of
the
Appellant’s
father
but
counsel
for
the
Appellant
told
the
Court
that
he
was
under
the
impression
that
he
was
at
least
80
years
old.
The
Appellant
undertook
in
his
affidavit
that
visual
and
oral
contact
between
the
parties
would
be
kept
at
all
times
during
the
examination.
This
was
confirmed
by
counsel
for
the
Appellant,
who
also
confirmed
that
the
setting
of
the
video-conference
would
be
entirely
at
the
Appellant’s
responsibility
and
expense.
It
was
also
stated
that
the
examination
could
take
place
sometime
in
August
1999,
before
the
hearing
set
on
September
9,
1999,
or
on
the
day
of
the
hearing.
The
examination
would
be
videotaped
and
the
videotape
would
be
filed
in
evidence,
pursuant
to
section
109
of
Tax
Court
of
Canada
Rules
(General
Procedure)
(the
“Rules”).
Counsel
for
the
Respondent
opposed
the
motion
on
the
basis
that
it
would
be
more
difficult
to
ascertain
the
credibility
of
the
witness.
In
addition,
he
stated
that
the
taking
of
evidence
by
means
of
a
video-conference
is
not
provided
for
in
the
Rules.
What
is
foreseen
in
these
circumstances
is
a
rogatory
commission,
as
specified
in
subsection
112(2)
of
the
Rules.
Counsel
for
the
Appellant
submitted
that
sections
7
and
9
of
the
Rules
allow
the
Court
to
issue
orders
as
to
rules
of
procedure
that
are
not
specifically
provided
for
in
the
Rules,
where
the
interests
of
justice
do
dictate.
Section
9
of
the
Rules
read
as
follows:
9.
The
Court
may,
only
where
and
as
necessary
in
the
interests
of
justice,
dispense
with
compliance
with
any
rule
at
any
time.
The
Federal
Court
of
Appeal
in
Moss
v.
R.
(1999),
99
D.T.C.
5204
(Fed.
C.A.),
found
that
there
was
authority
under
section
9
of
the
Rules
to
vary
the
procedural
requirements
in
the
interests
of
justice.
A
procedural
matter
prescribed
by
a
rule
may
be
waived
pursuant
to
those
rules.
I
would
also
refer
to
one
of
my
decisions
in
Feuiltault
c.
R.
(1992),
[1993]
1
C.T.C.
2385
(T.C.C.).
I
agree
with
counsel
for
the
Respondent
that
the
best
method
of
ascertaining
the
credibility
of
a
witness
by
a
presiding
judge
is
to
have
this
witness
appearing
in
Court
at
the
time
of
the
hearing.
However,
in
the
present
case,
it
is
alleged
that
the
witness
is
too
old
and
too
ill
to
make
the
required
long
trip.
There
was
no
evidence
to
the
contrary
and
I
find
no
reason
not
to
believe
the
Appellant’s
affirmation.
It
may
very
well
be
that
the
trip
is
too
tiring
for
a
man
of
an
advanced
age.
His
testimony
is
very
important
for
the
Appellant
and
it
is
surely
not
lightly
that
the
Appellant
makes
that
request,
as
he
would
prefer
to
have
him
in
Court
in
Montreal.
Another
reason
to
believe
in
the
genuineness
of
the
request
is
that
it
appears
to
me
that
the
cost
of
bringing
the
witness
to
Canada
would
be
lower
than
organizing
the
taking
of
his
testimony
by
video-conference.
The
issue
of
the
rogatory
commission
was
not
really
debated.
I
suppose
that
its
costs
in
view
of
the
financial
means
of
the
Appellant
and
of
the
amount
of
income
tax
at
stake,
did
not
make
it
a
reasonable
alternative
in
the
mind
of
either
party.
I
therefore
find
that
it
is
in
the
interests
of
justice
to
allow
the
taking
of
Mr.
Eric
Waltz’s
testimony
in
the
manner
sought.
Counsel
for
the
Appellant
has
suggested
two
possibilities:
first,
that
the
testimony
be
taken
out
of
Court
before
the
date
of
the
hearing,
that
is
September
9,
1999
or,
at
the
time
of
the
hearing.
It
may
appear
at
first
sight
that
it
would
be
better
if
the
testimony
was
given
in
front
of
the
presiding
judge
on
September
9,
1999.
However,
this
method
of
taking
testimony
is
new
and
requires
technical
knowledge
and
reliance
on
transmission
that
may
be
faulty
especially
in
the
first
experiences.
The
Court
therefore
finds
it
advisable
that
the
said
examination
be
held
out
of
the
presence
of
the
presiding
judge
in
the
month
of
August,
and
the
videotape
be
filed
with
the
Court.
Respecting
the
services
of
a
translator
from
English
to
German
and
vice-
versa,
subsection
102(4)
of
the
Rules
will
apply:
102(4)
Where
the
person
being
examined
understands
neither
English
nor
French,
or
is
deaf
or
mute,
the
examining
party
shall
provide
and
pay
the
fees
and
disbursements
of
a
competent
and
independent
interpreter
approved
by
the
Registrar
who
shall
take
an
oath
or
make
an
affirmation
to
interpret
accurately
the
administration
of
the
oath
or
affirmation,
the
questions
to
be
put
to
the
person
being
examined
and
the
person’s
answers.
There
will
be
no
order
as
to
costs.
Motion
granted.
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