Date: 20040324
Docket: T-89-04
Citation: 2004 FC 439
Montreal, Quebec, March 24, 2004
Present: RICHARD MORNEAU, PROTHONOTARY
BETWEEN:
DONALD FABI
Applicant
and
MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion by the applicant in connection with an application for judicial review essentially for rulings in his favour on certain objections raised by the respondent during the examination of the respondent's affiant (the examination of Mr. Phaneuf).
[2] For the purposes of this motion, the applicant's application for judicial review concerns just two requirements to provide documents or information issued on December 15, 2003, by the respondent under the Income Tax Act, R.S.C., 1985 (5th Supp.) c. 1, as amended (the December 15, 2003 information requirements).
[3] In the light of clarification provided by counsel for the applicant at the hearing of this motion, the applicant apparently claims that the December 15, 2003 information requirements are a form of intimidation of the applicant and his entourage as well as an abuse of process and a violation of section 8 of the Charter, basically because the information sought by the respondent on December 15, 2003, was purportedly already provided in the past in response to other information requirements.
[4] However, in order to substantiate this point, the applicant should, in support of his main affidavit, have produced the evidence or preliminary evidence that the requested information had in fact already been provided. He failed to do that. That in itself is an initial difficulty for which the applicant is entirely responsible. During the examination of Mr. Phaneuf, the applicant could at least have attempted to bring this past information to Mr. Phaneuf's attention, and together they could then have explored the circumstances justifying the respondent's continued requirement for the specific information set out in the December 15, 2003 information requirements. That is not how the applicant went about it. By trying to get access to more or less all of Mr. Phaneuf's investigation file, the applicant went on something of a fishing expedition, hoping to find some evidence in Mr. Phaneuf's file to support his own legal arguments.
[5] The respondent's objections seem reasonable to me based on the applicable case law on the potential scope of examination on an affidavit in a judicial review proceeding (see Merck Frosst Canada Inc. v. Canada (Minister of Health) (1997), 80 C.P.R. (3d) 550, upheld on appeal, 3 C.P.R. (4th) 286; Eli Lilly and Co. v. Novopharm Ltd. (1996), 67 C.P.R. (3d) 362; Imperial Chemical Industries Plc et al. v. Apotex Inc. (1988), 23 C.P.R. (3d) 362; Upjohn Corp. v. Minister of National Health (1987), 14 C.P.R. (3d) 50.
[6] The analysis in Royal Bank of Scotland plc. v. Golden Trinity (The), [2000] 4 F.C. 211, is not directly applicable here because the Court was dealing with a completely distinct and special situation: the scope of cross-examination on affidavits of claim in a proceeding to determine priorities - in the context of an action - to ship sale proceeds.
[7] For the foregoing reasons, the applicant's motion is dismissed in relation to all of the relief sought, with costs against the applicant.
[8] The parties shall proceed with Mr. Phaneuf's examination at a time and place to be determined by consent of counsel for the parties. The examination must, however, take place by April 22, 2004. The periods provided for in rules 309 and following will apply thereafter.
|
|
Richard Morneau |
|
|
Prothonotary |
Certified true translation
Peter Douglas
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
STYLE OF CAUSE:
T-89-04
DONALD FABI
Applicant
and
MINISTER OF NATIONAL REVENUE
Respondent
PLACE OF HEARING:MONTREAL, QUEBEC
DATE OF HEARING:MARCH 22, 2004
REASONS FOR ORDER: RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS:MARCH 24, 2004
APPEARANCES:
| RICHARD GÉNÉREUX |
|
FOR THE APPLICANT |
|
|
|
|
| CHANTAL COMTOIS |
|
FOR THE RESPONDENT |
|
|
|
|
|
|
|
|
|
|
|
|
SOLICITORS OF RECORD:
| GÉNÉREUX CÔTÉ DRUMMONDVILLE, QUEBEC |
|
FOR THE APPLICANT |
|
|
|
|
| MORRIS ROSENBERG DEPUTY ATTORNEY GENERAL OF CANADA |
|
FOR THE RESPONDENT |
|
|
|
|
|
|
|
|