Date: 20010326
Docket: ITA-8856-99
Ottawa, Ontario, March 26, 2001
Before: PINARD J.
In re the Income Tax Act
- and -
In re one or more assessments made by the Minister of National Revenue pursuant to one or more of the following statutes: the Income Tax Act, the Canada Pension Plan and the Employment Insurance Act
Between:
JEAN-GUY MATHERS
Judgment debtor
AND
CINÉPARC ST-EUSTACHE INC.
Objector
AND
DEPUTY MINISTER OF REVENUE OF QUEBEC
Intervener
Motion by the objector Cinéparc St-Eustache Inc. appealing the order by Richard Morneau, prothonotary, dated February 21, 2001, made on a motion to disqualify filed by the objector asking for the disqualification of the prothonotary, Richard Morneau.
[Rule 51 of the Federal Court Rules (1998)]
ORDER
The motion is dismissed with costs.
YVON PINARD
JUDGE
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20010326
Docket: ITA-8856-99
Neutral reference: 2001 FCT 241
In re the Income Tax Act
- and -
In re one or more assessments made by the Minister of National Revenue pursuant to one or more of the following statutes: the Income Tax Act, the Canada Pension Plan and the Employment Insurance Act
Between:
JEAN-GUY MATHERS
Judgment debtor
AND
CINÉPARC ST-EUSTACHE INC.
Objector
AND
DEPUTY MINISTER OF REVENUE OF QUEBEC
Intervener
REASONS FOR ORDER
PINARD J.
[1] The objector is appealing the decision by the prothonotary Morneau on February 21, 2001 not to disqualify himself on account of an appearance and reasonable apprehension of bias alleged against him in that case.
[2] The rules for intervention by this Court sitting in appeal from the decision of a prothonotary have been clearly stated by MacGuigan J.A. in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425, at 462 and 463:
I also agree with the Chief Justice in part as to the standard of review to be applied by a motions judge to a discretionary decision of a prothonotary. Following in particular Lord Wright in Evans v. Bartlam, [1937] A.C. 473 (H.L.) at page 484, and Lacourcière J.A. in Stoicevski v. Casement (1983), 43 O.R. (2d) 436 (Div. Cct.), discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:
(a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or
(b) they raise questions vital to the final issue of the case. [reference omitted]
Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo.
[3] As in the case at bar the prothonotary's discretionary order does not deal with a question vital to the final issue of the case, I clearly am unable to exercise my own discretionary power without it being established that the order is clearly wrong.
[4] In this regard it appears, first, from paras. 26 to 30 of his decision, that the prothonotary applied the correct rules:
[26] It is worth beginning our analysis with the following observations of the Supreme Court on the concepts of impartiality and bias, made in R. v. S. (R.D.), [1997] 3 S.C.R. 484, at 528:
In Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 685, Le Dain J. held that the concept of impartiality describes "a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case". He added that "[t]he word ‘impartial' . . . connotes absence of bias, actual or perceived". See also R. v. Généreux, [1992] 1 S.C.R. 259, at p. 283. In a more positive sense, impartiality can be described - perhaps somewhat inexactly - as a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions.
In contrast, bias denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues.
[27] On the test applicable to weighing reasonable apprehension of bias, Bastarache J. of the Supreme Court recently noted the following:
The test for apprehension of bias takes into account the presumption of impartiality. A real likelihood or probability of bias must be demonstrated (R. v. S. (R.D.), [1997] 3 S.C.R. 484, at paras. 112 and 113).
(My emphasis)
[28] In R. v. S. (R.D.), at 532, the Supreme Court emphasized that the threshold for a finding of bias is high:
Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice.
[29] In the same breath, the Court indicated that the careful examination in question will depend entirely in each case on the evidence presented by the party alleging the reasonable apprehension of bias:
The onus of demonstrating bias lies with the person who is alleging its existence: Bertram, supra, at p. 28; Lin, supra, at para. 30. Further, whether a reasonable apprehension of bias arises will depend entirely on the facts of the case.
[30] In Droit de la Famille - 1559 (C.A.), [1993] R.J.Q. 625, at 633, Delisle J.A., speaking for a majority of the Quebec Court of Appeal, after reviewing the now well-known observations of De Grandpré J. in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at 394-95, analysed the reasonable apprehension of bias with the following pragmatic approach:
[TRANSLATION]
To be a cause of disqualification, therefore, the apprehension of bias must:
(a) be reasonable, in the sense that it must be both a logical apprehension, that is one which is based on valid grounds, and an objective one, that is one which a person described in (b) below, placed in the same circumstances, would share: there can be no question of a superficial, frivolous or isolated apprehension;
(b) be entertained by a person:
(1) who is sensible, not a quibbler, who is neither over-scrupulous nor anxious, naturally apprehensive nor readily inclined to blame others;
(2) who is well informed, because he or she has viewed the matter realistically and practically, that is, devoid of all emotionalism: the application to disqualify cannot be impulsive or a way of choosing the person who will hear the argument; and
(c) be based on good grounds: in analysing this test, the requirements will be more or less strict depending on whether the argument was recorded and whether a right of appeal exists.
(My emphasis)
[5] The facts submitted for consideration by the prothonotary are all set out in the affidavit filed in support of the motion to disqualify, especially and in particular at paras. 3 to 7:
3. Chantal Comtois, counsel for Her Majesty the Queen in the case at bar, is part of the Tax Litigation Directorate of the federal Department of Justice, Montréal office;
4. Pascale O'Bomsawin also works for the Tax Litigation Directorate of the federal Department of Justice, Montréal office;
5. Chantal Comtois and Pascale O'Bomsawin therefore work in the same sector for the federal Department of Justice;
6. Chantal Comtois and Pascale O'Bomsawin are both required to work on federal Customs and Revenue Agency matters;
7. I have been informed by counsel working for the federal Department of Justice that Pascale O'Bomsawin is the spouse of the prothonotary Richard Morneau . . .
[6] These facts were assumed to be true and accepted for what they establish, as appears from the following passage from the prothonotary's decision:
[12] There is no question that the facts mentioned in paras. 3, 4 and 7 of this affidavit are true.
[13] We could accept the facts set out in paras. 5 and 6 of the said affidavit for what they establish and the following analysis (paras. 26 et seq.) and the outcome of the motion at bar would not be in any way altered . . .
[7] In the circumstances, not only was the objector not able to establish that the prothonotary based the exercise of his discretion on a wrong principle, it also failed to show a misapprehension of the facts. As the evidence before the prothonotary was limited to the allegations of the affidavit filed in support of the motion to disqualify, I am quite unable to see any misapprehension in the conclusion that the fact that counsel for one party works as an employee in the same sector of the same federal Department as the prothonotary's spouse is not in itself a reason for disqualification.
[8] Accordingly, as the order is not clearly wrong, I am not required to exercise my own discretionary authority de novo and it is not my function to take the place of the prothonotary in assessing the facts. The intervention of this Court is thus not justified.
[9] Additionally, relying on Samson Indian Nation and Band v. Canada, [1998] 3 F.C. 3, para. [15], the prothonotary added to the record facts which were communicated to him by his spouse and which are set out in paras. 15 to 24 of his decision. However, he was careful to note that his analysis and the fate of the motion to disqualify [TRANSLATION] "would not in any way be altered" without those facts. As I have refused to intervene in connection with the other facts which were before him, namely those set out in the affidavit filed in support of the motion to disqualify, and which he found to be sufficient by themselves to justify dismissing the said motion, it will not be necessary for me to consider the objector's further arguments relating to the facts [TRANSLATION] "added" in paras. 15 to 24 of the decision a quo.
[10] For these reasons, the motion is dismissed with costs.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
March 26, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: ITA-8856-99
STYLE OF CAUSE: In re the Income Tax Act
- and -
In re one or more assessments made by the Minister of National Revenue pursuant to one or more of the following statutes: the Income Tax Act, the Canada Pension Plan and the Employment Insurance Act
AGAINST:
JEAN-GUY MATHERS
Judgment debtor
- and -
CINÉPARC ST-EUSTACHE INC.
Objector
- and -
DEPUTY MINISTER OF REVENUE OF QUEBEC
Intervener
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 19, 2001
REASONS FOR ORDER BY: PINARD J.
DATED: March 26, 2001
APPEARANCES:
Yves Ouellette for the objector
Chantal Comtois for the judgment creditor
SOLICITORS OF RECORD:
Gowling, Lafleur, Henderson for the objector
Montréal, Quebec
Morris Rosenberg for the judgment creditor
Deputy Attorney General of Canada
Ottawa, Ontario