Date: 19990715
Docket: 98-2959-IT-G
BETWEEN:
STEFFEN E. WALTZ,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Order
Lamarre Proulx, J.T.C.C.
[1] This is a motion made for the purpose of obtaining permission that an important witness for the Appellant, Mr. Eric Waltz, the Appellant's father, testify not in the immediate presence of counsel or of the presiding judge in Montreal, but in Germany by means of a video-conference. Everyone involved in the court process would attend the examination in Montreal. Mr. Eric Waltz would attend the examination in Germany.
[2] An affidavit of the Appellant was filed with the Court before the hearing of this motion. It stated that his father, Mr. Eric Waltz, resided in Germany and was too old and too ill to travel to Canada. It also stated that Mr. Waltz spoke German and a little English. The affidavit did not state the age of the Appellant's father but counsel for the Appellant told the Court that he was under the impression that he was at least 80 years old.
[3] The Appellant undertook in his affidavit that visual and oral contact between the parties would be kept at all times during the examination. This was confirmed by counsel for the Appellant, who also confirmed that the setting of the video-conference would be entirely at the Appellant's responsibility and expense. It was also stated that the examination could take place sometime in August 1999, before the hearing set on September 9, 1999, or on the day of the hearing. The examination would be videotaped and the videotape would be filed in evidence, pursuant to section 109 of Tax Court of Canada Rules (General Procedure) (the "Rules").
[4] Counsel for the Respondent opposed the motion on the basis that it would be more difficult to ascertain the credibility of the witness. In addition, he stated that the taking of evidence by means of a video-conference is not provided for in the Rules. What is foreseen in these circumstances is a rogatory commission, as specified in subsection 112(2) of the Rules.
[5] Counsel for the Appellant submitted that sections 7 and 9 of the Rules allow the Court to issue orders as to rules of procedure that are not specifically provided for in the Rules, where the interests of justice do dictate.
[6] Section 9 of the Rules read as follows:
9. The Court may, only where and as necessary in the interests of justice, dispense with compliance with any rule at any time.
[7] The Federal Court of Appeal in The Queen v. Danny Moss, 99 DTC 5204, found that there was authority under section 9 of the Rules to vary the procedural requirements in the interests of justice. A procedural matter prescribed by a rule may be waived pursuant to those rules. I would also refer to one of my decisions in P. Feuiltaut v. Canada, [1993] 1 C.T.C. 2385.
[8] I agree with counsel for the Respondent that the best method of ascertaining the credibility of a witness by a presiding judge is to have this witness appearing in Court at the time of the hearing. However, in the present case, it is alleged that the witness is too old and too ill to make the required long trip. There was no evidence to the contrary and I find no reason not to believe the Appellant's affirmation. It may very well be that the trip is too tiring for a man of an advanced age. His testimony is very important for the Appellant and it is surely not lightly that the Appellant makes that request, as he would prefer to have him in Court in Montreal. Another reason to believe in the genuineness of the request is that it appears to me that the cost of bringing the witness to Canada would be lower than organizing the taking of his testimony by video-conference. The issue of the rogatory commission was not really debated. I suppose that its costs in view of the financial means of the Appellant and of the amount of income tax at stake, did not make it a reasonable alternative in the mind of either party. I therefore find that it is in the interests of justice to allow the taking of Mr. Eric Waltz's testimony in the manner sought.
[9] Counsel for the Appellant has suggested two possibilities: first, that the testimony be taken out of Court before the date of the hearing, that is September 9, 1999 or, at the time of the hearing. It may appear at first sight that it would be better if the testimony was given in front of the presiding judge on September 9, 1999. However, this method of taking testimony is new and requires technical knowledge and reliance on transmission that may be faulty especially in the first experiences. The Court therefore finds it advisable that the said examination be held out of the presence of the presiding judge in the month of August, and the videotape be filed with the Court.
[10] Respecting the services of a translator from English to German and vice-versa, subsection 102(4) of the Rules will apply:
102(4) Where the person being examined understands neither English nor French, or is deaf or mute, the examining party shall provide and pay the fees and disbursements of a competent and independent interpreter approved by the Registrar who shall take an oath or make an affirmation to interpret accurately the administration of the oath or affirmation, the questions to be put to the person being examined and the person's answers.
[11] There will be no order as to costs.
Signed at Ottawa, Canada, this 15th day of July, 1999.
"Louise Lamarre Proulx"
J.T.C.C.