Rip T.C.J.:
1 The appellant, Owen Holdings Ltd., has made a cross-motion for an order under subsection 91(c) of the Tax Court of Canada Rules (General Procedure) that its appeal be allowed for the reasons that the respondent has failed to file a full list of documents as required by my order of June 27, 1996 and as undertaken to do so by counsel for the respondent at the hearing of a previous motion on May 28, 1996, has failed to file the list of documents referred to in the second part of the June 27 order, and has failed to disclose those documents in Categories (iii) and (iv) referred to in my reasons for order as undertaken to do so by counsel for the respondent at the hearing of the May 27 motion.
2 Rule 91(c) provides that
Where a person or party who is required to make discovery of documents under sections 78 to 91 fails or refuses without reasonable excuse to make a list or affidavit of documents or to disclose a document in a list or affidavit of documents or to produce a document for inspection and copying, or to comply with a judgment of the Court in relation to the production or inspection of documents, the Court may, ... except where the failure or refusal is by a person who is not a party, dismiss the appeal or allow the appeal as the case may be, ...
3 I shall dismiss the appellant's cross-motion. I do not believe circumstances warrant the appeal be allowed under Rule 91(c) for the reasons submitted by the appellant.
4 My order of June 27, 1996 read as follows:
a) The respondent deposit in an envelope copies of all documents numbered 198, 199, 203 and 206 in the appellant's list of documents requested under the Access of Information Act and exempted from disclosure under that Act, and that the envelope be sealed and within 30 days of this Order be delivered to the undersigned Judge of this Court to consider whether he ought to direct the respondent to include such documents in her list of all documents in accordance with subsection 82(1) of the Tax Court of Canada Rules (General Procedure), and
b) The respondent shall file and serve on the appellant a list of all documents containing a description of any Advance Rulings or Technical Interpretations issued to any other taxpayer concerning the application of general anti-avoidance rules in the Income Tax Act in the context of a transfer of property with an inherent loss to a related party, in accordance with subsection 82(1) of the Tax Court of Canada Rules (General Procedure); copies of such documents shall be made available to the appellant provided that the respondent shall erase or otherwise obliterate the names of any taxpayers which may appear on copies of any such documents.
5 The appellant has appealed, and the respondent has cross-appealed, my order. The respondent, by Notice of Motion dated August 12, 1996, applied to this Court for an order pursuant to Rule 172(2)(B) suspending the order of June 27[FN1: <p>The appellant filed the cross-notice of motion subsequent to the respondent's Notice of Motion of August 12, 1996</p>] . The respondent's motion and the appellant's cross-motion were heard on September 4, 1996. On September 5, 1996, I dismissed the respondent's motion. However, until the ruling on the motion to suspend was issued the respondent had a reasonable excuse not to file the list of all documents referred to in paragraph (b) of my order.
6 During the hearing of the motion on May 28, 1996, counsel for the respondent agreed to disclose those documents in Categories (iii) and (iv), referred to in my reasons for order, to the appellant. In his affidavit of August 12, 1996 in support of the motion at bar, Jay Humphrey, a barrister and solicitor, employed by the Department of Justice and co-counsel having conduct of the appeal on behalf of the respondent, affirmed that on August 21, 1996, the respondent - actually it was Mr. Humphrey - wrote to the appellant enclosing documents relating to Category (iv) in conformity with the Crown's consent to do so. He added the letter of August 21, 1996 was unrelated to the motion at bar. Counsel for the appellant complained that the existence of these documents, referred to as GAAR Committee minutes, were previously denied by respondent's counsel.. Respondent's counsel, Mr. Taylor, advised me during the hearing of May 28, 1996 that the GAAR Committee of Revenue Canada does not take minutes of meetings. I do not agree with appellant's counsel's complaint. Respondent's counsel had referred to GAAR Committee minutes in earlier correspondence to appellant's counsel (see letter of may 15, 1996 - Exhibit “C” to Mr. Humphrey's affidavit). I believe that what respondent's counsel meant when he said the GAAR Committee does not take minutes of meetings, was that the GAAR Committee does not take verbatim minutes of its proceedings.
7 Mr. Humphrey also stated in his affidavit that:
18. The Respondent has not received any further written request for a Rule 82 List of Documents excluding the categories of documents which are in dispute subsequent to Judge Rip's Order of June 27, 1996, nor do I recall any oral request from counsel for the Appellant or anyone else for such a list between June 27, 1996 and August 20, 1996 or at any time thereafter to the date of this affidavit.
8 This is a foolish comment. This statement confirms the worst things critics of the judicial system say when they attack the delays and unwarranted expenses in the litigation process. When a counsel undertakes to do something, he or she should do so on his or her own initiative within a reasonable amount of time. There is no need for formality.
9 Since the Crown finds it difficult to act without a direction from the Court, and considering the facts leading to the cross-motion, I will direct in accordance with Rule 91(e) that respondent deliver the undertakings to the appellant within 20 days. In the circumstances, it would not be just to allow the appellant's appeal for the reasons it gave asking for such an order.
10 Costs shall be in the cause.
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