Date: 19991125
Docket: T-1909-95
BETWEEN:
NORMAN A. MINTZER
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
GILES A.S.P.:
[1] In this action the plaintiff has alleged that certain tax debts for the years 1973, 1974, and 1976 to 1979 ("the earlier years") were by agreement released and forgiven.
[2] The plaintiff was assessed for income tax in the years 1986 to 1991 ("the later years") (years when he was not in the country).
[3] From about May 1993 the defendant retained the plaintiff"s Canada Pension Plan retirement benefits by statutory set-off to apply to the tax assessed for the later years. In March of 1995 the defendant issued a second statutory set-off for the tax alleged to be owing for the earlier years. With respect to the tax assessed for the later years the defendant has now "adjusted the Plaintiff"s arrears balance accordingly, to reflect that the particular debt thought to have arisen for those years does not exist."
[4] Before me now are two interlocutory motions. One by the plaintiff seeks to strike certain paragraphs from the Defence to Amended Statement of Claim which make allegations with respect to the assessments for the later years. The plaintiff also seeks answers to certain questions asked on written discovery and compliance with certain undertakings (the undertakings have now been complied with). The second motion is by the defendant and seeks an order compelling the plaintiff to answer questions refused on discovery. The questions deal with the assessments for the later years and the plaintiff"s residence in the later years.
[5] Dealing first with the defendant"s motion I note that the defendant has "adjusted the plaintiff"s arrears balance ... to reflect that the particular debt thought to have arisen for those years does not exist." Thus, in my opinion, any questions concerning the amount of tax, the details of the tax returns and assessments for the later years is irrelevant, although the fact that there was a second assessment and a first statutory set-off may well be facts relevant to the claim for damages. The defendant"s motion will be dismissed.
[6] Dealing next with the plaintiff"s motion he seeks to strike paragraphs 9 to 11 and 15 from the defence to the amended statement of claim. Paragraph 9 effectively expands on the plaintiff"s own allegations with respect to the tax returns for the later years. Paragraph 10 alleges the plaintiff stated in the tax returns he was a resident of Ontario, and further stated he was self-employed in Ontario during the later years. Paragraph 11 indicates that as a result of assessments based on the returns for the later years taxes were levied against the plaintiff. These allegations, in my view, expand on the plaintiff"s own allegations with regard to the later years and very possibly are relevant with respect to the matter of damages. Paragraph 15, in my view, is explanatory of and incidental to paragraph 16 which contains the admission that the defendant deemed the plaintiff to be a non-resident in the later years.
[7] The second part of the plaintiff"s motion seeks answers to questions not answered on the written discovery of the defendant. The defendant, as is required, was represented by a member of the civil service who could not answer all questions from his own knowledge. Question 12 asked who at Revenue Canada was presently in charge of the plaintiff"s account. Such a person might be a witness, and the question should be answered.
[8] Question 22 concerns a letter produced and written by one Jim Parker. The question asks what his position was when he wrote the letter and what his position is today. The defendant"s witness indicates that he does not know the answer. Because the answers are probably relevant and certainly with regard to the present position might enable a witness to be contacted, the question should be answered.
[9] Question 23 asks if in that position he would be aware of the amount of money the defendant claimed the plaintiff owed it. That question is relevant and should be answered.
[10] Question 37(a) asks when were the records destroyed. To which the witness replied: "I have no knowledge". He should inform himself and advise because the answer might be relevant.
[11] Question 49 asks the date of the plaintiff"s 1980 assessment by the defendant. The witness answered that he did not know. He should inform himself and answer.
[12] The answer to question 50 is similarly possibly relevant and should be answered.
[13] Question 59 seeks the position that Nicole Kirouac held at the time she made a memo on October 4, 1993. The answer to that question would be relevant. It also asks what her position is, if any, today. The only relevance of the answer to that question would be to locate her as a potential witness. Questions should be answered.
[14] Question 62 enquires whether Nicole Kirouac was in a position to know that all the documents regarding the plaintiff had been destroyed when she made the memo in October 1993. This question is possibly relevant and should be answered.
[15] Question 67 asks how the documents were destroyed. I see no possible relevance to the answer. The question does not have to be answered.
[16] Questions 68 asks for the procedure followed. If this means how it was decided to destroy the documents an answer would be relevant. If it means whether they were shredded or burned it would be irrelevant. I think it means the former, and should be answered.
[17] Question 121 appears to have been answered.
[18] Questions 141(a), 141(c), and 141(d) concern a document entitled "Number of CPP Benefits Affected Under section 224.1 of Income Tax Act". This form was produced by a different department of the same government. This witness knew nothing about it. He should, however, inform himself and answer the questions. Matters concerning Canada Pension Plan benefits are relevant to the action.
[19] As previously noted, the undertakings have been complied with therefore, compliance will not be ordered.
ORDER
[20] The motion for an order striking out paragraphs 9 to 10 and 15 of the defence to amended statement of claim is dismissed.
[21] It is ordered that the defendant"s representative, Nazmin Zaver, answer the questions indicated in the above reasons.
[22] The undertakings having been responded to, no order with respect to them will be made.
"Peter A. K. Giles"
A.S.P.
TORONTO, ONTARIO
November 25, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-1909-95 |
| STYLE OF CAUSE: NORMAN A. MINTZER |
- and -
| HER MAJESTY THE QUEEN |
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
REASONS FOR ORDER
| AND ORDER BY: GILES A.S.P. |
DATED: THUSDAY, NOVEMBER 25, 1999
| WRITTEN SUBMISSIONS BY: Mr. Norman Mintzer |
| For the Plaintiff |
| Mr. P. Christopher Parke |
| For the Defendant |
| SOLICITORS OF RECORD: Norman A. Mintzer |
270 The Kingsway
P.O. Box 270,
| Toronto, Ontario |
| M9A 3T7 |
| For the Plaintiff in Person |
| Morris Rosenberg |
Deputy Attorney General of Canada
| For the Defendant |
FEDERAL COURT OF CANADA
Date: 19991125
Docket: T-1909-95
Between:
| NORMAN A. MINTZER |
Plaintiff
- and -
| HER MAJESTY THE QUEEN |
Defendant
REASONS FOR ORDER
AND ORDER