Date: 19991112
Docket: A-870-97
MONTRÉAL, QUEBEC, THE 12th DAY OF NOVEMBER 1999
CORAM: THE HONOURABLE MR. JUSTICE DÉCARY
THE HONOURABLE MR. JUSTICE LÉTOURNEAU
THE HONOURABLE DEPUTY JUSTICE CHEVALIER
BETWEEN: JULES FAFARD
Appellant
AND
HER MAJESTY THE QUEEN
Respondent
J U D G M E N T
The appeal is dismissed with costs.
Robert Décary
J.A.
Certified true translation
Peter Douglas
Date: 19991112
Docket: A-870-97
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
CHEVALIER D.J.
BETWEEN:
JULES FAFARD
Appellant
AND:
HER MAJESTY THE QUEEN
Respondent
Hearing held at Montréal, Quebec on Friday, November 12, 1999
Judgment delivered from the bench at Montréal, Quebec on Friday, November 12, 1999
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
Date: 19991112
Docket: A-870-97
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
CHEVALIER D.J.
BETWEEN:
JULES FAFARD
Appellant
AND:
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec
on Friday, November 12, 1999)
LÉTOURNEAU J.A.
[1] He who sows the wind reaps the whirlwind.
[2] On examination for discovery, which he was required to attend prior to the hearing of his appeal from an assessment issued by the Minister of National Revenue, the appellant blasted abuse, insults, intimidation, obscenities, verbal and physical aggression, improper objections and refusals to answer the questions he was asked. The whirlwind hit him on November 3, 1997, when Judge Dussault (the Judge) of the Tax Court of Canada (the Court), under section 110 of the Tax Court of Canada Rules (General Procedure) (the Rules), dismissed the appellant"s appeal and directed him to pay $4,000 in costs. The appellant is now appealing that decision.
[3] Section 110 of the Rules sets out the Court"s power to control examinations for discovery and the sanctions for non-compliance as follows:
Sanctions for Default or Misconduct by Person to be Examined
110. Where a person fails to attend at the time and place fixed for an examination in the notice to attend or subpoena, or at the time and place agreed on by the parties, or refuses to take an oath or make an affirmation, to answer any proper question, to produce a document or thing that that person is required to produce or to comply with a direction under section 108, the Court may,
Sanctions en cas de défaut ou d'inconduite de la personne devant être interrogée
110. Si une personne ne se présente pas à l'heure, à la date et au lieu fixés pour un interrogatoire dans l'avis de convocation ou le subpoena, ou à l'heure, à la date et au lieu convenus par les parties, ou qu'elle refuse de prêter serment ou de faire une affirmation solennelle, de répondre à une question légitime, de produire un document ou un objet qu'elle est tenue de produire ou de se conformer à une directive rendue en application de l'article 108, la Cour peut :
| (a) where an objection to a question is held to be improper, direct or permit the person being examined to reattend at that person's own expense and answer the question, in which case the person shall also answer any proper questions arising from the answer, |
| a) en cas d'objection jugée injustifiée à une question, ordonner ou permettre à la personne interrogée de se présenter à nouveau, à ses propres frais, pour répondre à la question, auquel cas elle doit répondre aussi aux autres questions légitimes qui découlent de sa réponse; |
| (b) where the person is a party or, on an examination for discovery, a person examined on behalf of or in place of a party, dismiss the appeal or allow the appeal as the case may be, |
| b) rejeter ou accueillir l'appel, selon le cas, si cette personne est une partie ou, dans le cas d'un interrogatoire préalable, une personne interrogée à la place ou au nom d'une partie; |
| (c) strike out all or part of the person's evidence, including any affidavit made by the person, and |
| c) radier, en totalité ou en partie, la déposition de cette personne, y compris une déclaration sous serment faite par cette personne; |
| (d) direct any party or any other person to pay personally and forthwith costs of the motion, any costs thrown away and the costs of any continuation of the examination. |
| d) ordonner à toute partie ou à toute autre personne de payer sans délai et personnellement les dépens de la requête, ceux qui ont été engagés inutilement et ceux de la poursuite de l'interrogatoire. |
[4] The appellant was late for his examination for discovery on October 8, 1997, thus projecting an attitude of defiance and contempt. The ensuing examination for discovery was chaotic, disrespectful, unsatisfactory, and completely unacceptable in a legal proceeding, which must be fair and orderly, and which the appellant himself initiated; it all ended in an act of aggression by the appellant, who threw a document in the Department of Revenue investigator"s face. Tables provided by the respondent, showing some of the abuse hurled by the appellant and some of his evasive answers, are set out here:
[TRANSLATION] APPENDIX I
TABLE 1
IMPROPER OBJECTIONS, EVASIVE ANSWERS AND
ANSWERS HAVING NOTHING TO DO WITH THE QUESTION
| No. |
Question |
Answer |
| 1 |
When did Bâtiments Fafard Inc. go into business? (P.11, L.7) |
Witness refuses to answer. (P.11 and 12) "Check the books . . ." ". . . quit bugging me." "If you don"t like it, quit asking." |
| 2 |
When Bâtiments Fafard Inc. was incorporated, who were its shareholders? (P.19, L.12) |
"I don"t remember." (P.19, L.14) ". . . it was owned by RIO Investments."1 (P.14, L.26) |
| 3 |
Check whether you have a copy of the trust deed and if so, provide a copy. (P.23, L.5) |
Mr. Fafard: "I don"t have time to check that." (P.23, L.6) Objection by Mr. Bérubé: relevance (P.24, L.12) |
| 4 |
In the early years of Bâtiments Fafard Inc."s operations, what was your role? |
"Ask her." "You can do what you like with your question." (P.26, L.1 and 3) |
| 5 |
What was your job . . . (P.26, L.16) |
Interruption: lecture on Mr. Thibault, allegations of fraud and federal-provincial relations. (P.26, L.18) |
| 6 |
Tell me about the other tasks . . . (P.30, L.4) |
"I won"t go into detail on that . . ." "I don"t remember." (P.30, L.5 and 11) |
| 7 |
As of 1987, . . . when you resigned . . . (P.30, L.14) |
Interruption: lecture on bankruptcy, its causes, the Court of Appeal and banks. (P.30, L.15) |
| 8 |
What kind of company did business with Bâtiments Fafard Inc.? (P.33, L.11) |
"That"s Thibault"s job, getting the names of clients and then harassing them, that"s what they do." (P.33, L.13) "Ask the sales manager, he"ll tell you." (P.33, L.21) ". . . you"ll have to go discuss it with my fairy godmother; I don"t know." (P.34, L.15) "Ask Thibault, he knows." (P.35, L.10) "There"s no point in asking me that." (P.35, L.12) |
| 9 |
You never . . . (P.47, L.13) |
Interruption: lengthy tirade on divorce proceedings, the role of federal public servants and the RCMP in a seizure, bankruptcy, etc. (P.55, L.19) |
| 10 |
Why were they issued shares? (P.54, L.17) |
"Ask her." (P.54, L.20 and 23) Lengthy discussion of the seizure by "Thibault and his gang", personal bankruptcy, etc. (P.55, L.19) |
| 11 |
Did you . . . (P.64, L.27) |
Interruption: discussion of Mr. Pinard"s past; abuse. (P.64, L.28) |
| 12 |
I"m just asking you to confirm or deny what it says there. (P.69, L.28) |
"I don"t have to confirm or deny." Discussion of the federal government"s intent to ruin the company. (P.70, L.2) |
| 13 |
After January 1987, to your knowledge, were any other directors" or shareholders" resolutions passed? |
"Ask Pinard." (P.75, L.28) |
| 14 |
What was André Pinard"s salary? (P.90, L.3) |
"Well, look at the books and you"ll find out." (P.90, L.4) |
| 15 |
Is Mr. Pinard retired? (P.90, L.16) |
"Ask him, I don"t remember." (P.90, L.18) |
| 16 |
Can you let us know if . . . (P.100, L.13) |
"No, I won"t be checking anything, I"ve wasted enough time with you people . . ." (P.100, L.14) Mr. Fafard refuses to give undertakings, despite his lawyer"s advice. (P.101, L.2) |
| 17 |
What business does Mr. Fafard currently operate? (P.101, L.25) |
"I am not going to answer any more questions that aren"t about these documents here, okay, about this matter, is that clear? If you don"t like it, take it up with the judge." (P.102, L.4) |
| 18 |
Can you confirm it"s the signature of Jules Fafard (Bâtiments Fafard"s 1988 income tax return)? (P.107, L.11) |
Refusal: the document is not on the respondent"s list of documents. (P.106 and 107) |
| 19 |
Confirm Mr. Fafard"s signature on Bâtiments Fafard Inc."s 1986 income tax return. (P.107, L.18) |
Refusal: the document is not on the respondent"s list of documents. (P.107, L.28) |
| 20 |
At tab 1 of Exhibit I-1, the judgment of Judge Yves Morier. (P.122, L.17) Confirm the facts set out in the judgment. (P.123, L.14) |
"I won"t answer any question about Judge Morier because I think it was illegal, the way that was done . . ." (P.122, L.19) "I won"t answer any question about that document, whether you like it or not, damn it! . . . if you don"t like it, I can leave." (P.122, L.28) Mr. Bérubé: "Mr. Fafard does not have to incriminate himself, it"s a criminal judgment." (P.123, L.18) |
| TABLE 2 |
| INCIDENTS DURING THE EXAMINATION OF OCTOBER 8, 1997 |
| No. |
Incident, remark, insult, etc. |
Target |
Page, Line |
| 1 |
". . . you can go play with yourself . . ." |
Mr. Bourgeois |
P.5, L.22 |
| 2 |
"The feds transfer that to the Bahamas with the rich families." |
Federal public servants |
P.9, L.9 |
| 3 |
". . . honesty is somewhat beneath you." |
Mr. Bourgeois |
P.9, L.17 |
| 4 |
". . . you people have time on your hands, anyway" |
Mr. Bourgeois |
P.9, L.22 |
| 5 |
Mr. Fafard says Mr. Thibault may have falsified documents. |
Mr. Thibault |
P.14, L.17 |
| 6 |
". . . it"s constant cheating . . . . that"s just like Thibault." |
Mr. Thibault |
P.16, L.4 |
| 7 |
". . . why ask me such stupid questions . . ." and later, "It"s still true . . ." |
Mr. Bourgeois |
P.17, L.4 and P.18, L.14 |
| 8 |
"Can"t you read?" |
Mr. Bourgeois |
P.20, L.13 |
| 9 |
". . . because you people can make tons of bogus ones . . ." |
Department of Justice |
P.20, L.15 |
| 10 |
". . . those people are real thieves ." |
Federal public servants |
P.21, L.11 |
| 11 |
"Winter came too early for him?" |
Mr. Bourgeois |
P.22, L.1 |
| 12 |
". . . they"re only trying to lead me astray . . . it"s totally dishonest ." |
Mr. Bourgeois |
P.29, L.4 and 9 |
| 13 |
"You won"t be giving anyone orders today." |
Mr. Bourgeois |
P.31, L.21 |
| 14 |
"That"s Thibault"s job, getting the names of clients and then harassing them, that"s what they do." |
Mr. Thibault |
P.33, L.13 |
| 15 |
You"re not clever enough to understand it, I can"t do anything about that. |
Mr. Bourgeois |
P.37, L.10 |
| 16 |
"So how do you expect me to answer your damn questions?" |
Mr. Bourgeois |
P.42, L.27 |
| 17 |
"Can you get that through your head ?" |
Mr. Bourgeois |
P.43, L.1 |
| 18 |
". . . Thibault came to St. Hyacinthe to pull that dirty trick ." |
Mr. Thibault |
P.45, L.1 |
| 19 |
". . . Thibault was probably there too, that idiot . . ." |
Mr. Thibault |
P.47, L.25 |
| 20 |
"There"s no courtesy where you come from . . ." |
Mr. Bourgeois |
P.48, L.13 |
| 21 |
Mr. Fafard states clearly that if Mr. Bourgeois plans to keep asking questions, he will have to take the abuse. |
Mr. Bourgeois |
P.48, L.19 |
| 22 |
"I will ask the witness to be as polite as possible , but come on . . ." |
Mr. Bérubé"s only remark to the witness |
P.49, L.6 |
| 23 |
". . . you"re a bit short on brains . . ." |
Mr. Bourgeois |
P.55, L.1 |
| 24 |
"Go ahead and laugh, Thibault, damn it ! Laugh away, you"re not too bright , but go right ahead." |
Mr. Thibault |
P.55, L.6 |
| 25 |
"He"s not smart enough to do that . . ." |
Mr. Thibault |
P.56, L.16 |
| 26 |
"If we take a break, I"m leaving. Ask me logical questions." |
Mr. Bourgeois |
P.56, L.24 |
| 27 |
"You people in the federal government are used to wasting your time . . ." |
Federal public servants |
P.57, L.13 |
| 28 |
"You don"t keep your word, but I keep mine." |
Mr. Thibault |
P.61, L.7 |
| 29 |
"Christ, you people are idiots!" |
Mr. Bourgeois and Mr. Thibault |
P.65, L.8 |
| 30 |
". . . ask Dixie and bug off !" |
--- |
P.76, L.18 |
| 31 |
". . . I"m not going to lie to you, damn it !" |
--- |
P.79, L.3 |
| 32 |
"It"s disgraceful , the way you work." |
Mr. Bourgeois |
P.83, L.5 |
| 33 |
"You call people like that honest ?" |
Mr. Bourgeois |
P.85, L.5 |
| 34 |
". . . it takes a hell of a lot of gall!" |
Mr. Bourgeois |
P.104, L.18 |
| 35 |
"I don"t get it, a man of the law and he doesn"t know his duties." |
Mr. Bourgeois |
P.115, L.1 |
| 36 |
"That"s ludicrous , unbelievable." |
Mr. Bourgeois |
P.116, L.18 |
| 37 |
". . . is that what you think, Thibault? Bloody moron !" |
Mr. Thibault |
P.119, L.16 |
| 38 |
"I won"t answer any question about that document, whether you like it or not, damn it ! |
--- |
P.122, L.28 |
| 39 |
". . . if you had taken an honest approach, damn it! . . ." |
Department of Justice |
P.123, L.24 |
| 40 |
The witness throws a book at Mr. Thibault. |
Mr. Thibault |
P.124, L.5 |
| [5] In our view, the Judge was right in finding that the appellant had exhibited misconduct and refused to be examined for discovery meaningfully. There was more than enough evidence of that. |
| [6] But that is not all. The Judge was of the opinion that the respondent"s disclosure rights were seriously compromised by the appellant"s abusive behaviour and were likely to be denied outright if the appellant persisted in the course he had chosen. Here too, there was more than enough evidence to justify such a finding and serve as the basis for dismissing the appeal. |
| [7] The Judge realized that dismissing the appeal was a drastic solution (albeit quite justified by the appellant"s abuse of procedure), and when the appellant appeared before him on November 3, 1997, the Judge offered to overlook the appellant"s past actions provided he undertook to be examined for discovery meaningfully and behaved with a modicum of courtesy. Again, the appellant"s conduct was defiant and unruly, as the transcript of that appearance shows. The appellant refused to give any undertaking whatsoever or discuss this option with his lawyer as the Judge was urging him to do, and left the hearing room. |
| [8] We are of the view that not only did the Judge exercise his discretion judicially, he also exercised it judiciously under the circumstances. |
| [9] The appeal will be dismissed with costs. |
| Gilles Létourneau |
| J.A. |
| Certified true translation |
| Peter Douglas |
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: A-870-97
STYLE OF CAUSE: Jules Fafard v. Her Majesty the Queen
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 12, 1999
REASONS FOR JUDGMENT OF THE COURT BY: (Décary, Létourneau, Chevalier JJ.A.)
DELIVERED FROM THE BENCH BY: Létourneau J.A.
APPEARANCES:
Jean-David Fortier for the appellant
Daniel Bourgeois for the respondent
SOLICITORS OF RECORD:
Jean-David Fortier for the appellant
Montréal, Quebec
Morris Rosenberg for the respondent
Deputy Attorney General of Canada
Ottawa, Ontario
__________________1 Translator"s note: the RIO (Régie des installations olympiques ) is the provincially-operated corporation that administers the Olympic Stadium in Montréal.