[OFFICIAL ENGLISH TRANSLATION]
2001-397(EI)
BETWEEN:
RHITA EL ANSARI,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE
Respondent.
Motion heard on June 5, 2001, at Montréal, Quebec, by
the Honourable Judge Louise Lamarre Proulx
Appearances
Agent for the Appellant: Abdelhak Guessous
Counsel for the Respondent: Chantal Jacquier
ORDER
Upon motion by the respondent: (1) to have the subpoenas that the appellant sent the ministers of National Revenue, Justice, Foreign Affairs and Human Resources Development quashed; (2) seeking leave to examine the appellant for discovery on or before August 31, 2001, with action to be taken on or before September 30, 2001, on any undertakings that may be given by the appellant during that examination; and (3) to have the hearing of this appeal, which had been set for June 11, 2001, adjourned accordingly;
And upon hearing what was alleged by the parties;
The motion is granted. The subpoenas against the ministers are quashed. The respondent is entitled to conduct an examination for discovery on or before August 31, 2001. The undertakings resulting from the examination for discovery will have to be fulfilled on or before September 30, 2001.
The Court will contact the parties to determine an appropriate hearing date.
The whole in accordance with the attached Reasons for Order.
Signed at Ottawa, Canada, this 6th day of July 2001.
|
"Louise Lamarre Proulx" |
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Date: 20010706
Docket: 2001-397(EI)
BETWEEN:
RHITA EL ANSARI,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR ORDER
Lamarre Proulx, J.T.C.C.
[1] This is a motion by the respondent: (1) to have the subpoenas that the appellant sent the ministers of National Revenue, Justice, Foreign Affairs and Human Resources Development quashed; (2) seeking leave to examine the appellant for discovery on or before August 31, 2001, with action to be taken on or before September 30, 2001, on any undertakings that may be given by the appellant during that examination; and (3) to have the hearing of this appeal, which had been set for June 11, 2001, adjourned accordingly.
[2] After hearing the parties, the Court decided from the bench to adjourn the hearing of this appeal to a date that is convenient for the Court and the parties, possibly in the fall of 2001.
[3] The decision being appealed is dated January 18, 2001, and is signed by Michel Boutin. It was prepared by Robert Leprohon. It reads as follows:
[TRANSLATION]
. . .
This letter concerns the request made by Rhita El Ansari to know whether she was an insured person, for employment insurance purposes, while she was employed by the embassy of the Kingdom of Morocco from September 1, 1997, to June 30, 2000.
It has been determined that Rhita El Ansari's employment was not insurable employment during the period at issue pursuant to paragraph 5(2)(d) of the Employment Insurance Act.
[4] To understand the motion, I consider it helpful to include the facts relied on by the Minister of National Revenue ("the Minister") when he made his decision as well as the appellant's grounds of appeal.
[5] Paragraph 5 of the Reply to the Notice of Appeal reads as follows:
[TRANSLATION]
(a) the appellant has been a landed immigrant since December 17, 1991;
(b) the appellant began working for the payer on September 1, 1993;
(c) during the period at issue, the appellant worked as a secretary for the payer's embassy in Ottawa;
(d) the appellant worked under a contract of service; and
(e) there is no agreement between Morocco and Canada concerning the eligibility of the payer's employees working in Canada for employment insurance.
[6] The appellant's grounds of appeal are as follows:
[TRANSLATION]
I therefore make the following arguments:
(A) by not requiring countries that have signed the said Convention [Vienna Convention] to comply with it as part of international law and part of Canadian law, the Canadian government-while showing a lack of respect for its own legislation vis-à-vis foreign countries-is wrongly and unlawfully making its workers suffer the consequences of the wrongdoing (violation of Canadian and international laws) by the employer at fault;
(B) as a result of that negligence or carelessness by the government, first, that class of employers is given preferential treatment over the class of Canadian employers in our own country, Canada, and the latter class is therefore being discriminated against; and
(C) second, the employees of those foreign governments are treated in a discriminatory manner compared with employees of Canadian employers.
Therefore: Double discrimination.
In so doing, I argue:
the Canadian government, by including s. 5(2)(d) in the Employment Insurance Act, even though it is presumed to know the above-mentioned provisions of its legislation on diplomatic privileges and even though it is required by the Canadian Charter of Rights and Freedoms to protect the rights of its nationals, is knowingly violating section 15 of the Charter.
[7] The provisions that support the respondent's decision that is under appeal are as follows. Subsection 5(1) of the Employment Insurance Act ("the Act") defines the concept of "insurable employment" in the following manner:
5. (1) Subject to subsection (2), insurable employment is
(a) employment in Canada by one or more employers, under any express or implied contract of service or apprenticeship, written or oral, whether the earnings of the employed person are received from the employer or some other person and whether the earnings are calculated by time or by the piece, or partly by time and partly by the piece, or otherwise;
Subsection 5(2) of the Act provides for exclusions, including:
5. (2) Insurable employment does not include
...
(d) employment in Canada by the government of a country other than Canada or of any political subdivision of the other country;
However, under paragraph 5(4)(e), such employment may be included in insurable employment by regulation:
5(4) The Commission may, with the approval of the Governor in Council, make regulations for including in insurable employment
...
(e) employment in Canada by the government of a country other than Canada or of any political subdivision of the other country if the employing government consents;
[8] Section 3 of the Employment Insurance Regulations ("the Regulations") states the following in this regard:
3(1) Employment in Canada by the government of a country other than Canada or of any political subdivision of that other country, or by an international organization, that would, except for paragraphs 5(2)(d) and (e) of the Act, be insurable employment, may be included in insurable employment if the employing government or the international organization, as the case may be, consents in writing to its inclusion.
(2) Where a consent has been given pursuant to the Unemployment Insurance Regulations, as they read immediately before June 30, 1996, and has not been revoked, it shall be considered to be a consent referred to in subsection (1).
[9] Paragraph 5(2)(d) of the Act provides that insurable employment does not include employment in Canada by the government of a country other than Canada. However, paragraph 5(4)(e) of the Act authorizes the Canada Employment Insurance Commission ("the Commission") to make regulations for including such employment in insurable employment if the employing government consents. The Commission exercised that regulatory power in a general way by making section 3 of the Regulations. For that section to be applicable, however, the employing government must have consented in writing to the insurability of its employee's employment.
[10] No such consent has been signed by Morocco.
The subpoenas
[11] Rule 24 of the Tax Court of Canada Rules of Procedure respecting the Employment Insurance Act reads in part as follows:
24(1) A party who requires the attendance of a person as a witness at a hearing may serve the person with a subpoena requiring the person to attend the hearing at the time and place stated in the subpoena and the subpoena may also require the person to produce at the hearing the documents or other things in the person's possession, control or power relating to the matters in question in the appeal that are specified in the subpoena.
...
24(3) A subpoena shall be served on a witness personally and, at the same time, witness fees and expenses in accordance with subsection (4) shall be paid or tendered to the witness.
...
[12] The subpoenas were filed with the motion. The reasons for which the quashing of the subpoenas against the said ministers is sought are as follows: (1) the ministers have no personal knowledge of the facts; and (2) according to the subpoenas, the reason their attendance is required is to [translation] "Answer questions about section 5(2) of the Unemployment Act, which is unconstitutional, and bill 11 on privileges and immunities".
[13] With regard to the first point, the motion also states:
[TRANSLATION]
. . .
6. None of the four ministers referred to above is personally aware of the facts relating to the insurability or uninsurability of Rhita El Ansari's employment at the embassy of the Kingdom of Morocco from September 1, 1997, to June 30, 2000.
7. The Minister of Justice, the Minister of Foreign Affairs and the Minister of Human Resources Development are not authorized by the Employment Insurance Act to decide whether employment is insurable and have never had to review Rhita El Ansari's file for that purpose.
8. The power conferred on the Minister of National Revenue by section 93 of the Employment Insurance Act to determine whether employment is insurable is, in the regions, officially delegated to the chiefs of appeals or the team leaders from the Appeals Division of the Canada Customs and Revenue Agency. The relevant extracts from the Minister's instrument of delegation are attached jointly to this affidavit as Exhibit B.
[14] The documents signed by the Minister of National Revenue delegating powers and duties were filed with the motion. They show which officials are entitled to exercise the powers and duties conferred on the Minister of National Revenue.
[15] As regards the officials who have knowledge of the facts that led to the decision under appeal, counsel for the respondent referred to the affidavit of Michel Boutin, Team Leader, Appeals Division, Montréal Tax Services Office, Canada Customs and Revenue Agency ("CCRA"). He has the Minister of National Revenue's delegated power. According to him, the file was assigned to Robert Leprohon. Counsel for the respondent therefore stated that those two individuals have personal knowledge of the facts and may be summoned.
[16] As regards the second reason for the application to quash the subpoenas, counsel for the respondent argued that the ministers were summoned to answer questions of law and that a witness can testify only about facts and not about law.
[17] Counsel for the respondent referred to this Court's decision in Bâtiment Fafard International Inc. v. The Queen, 99 DTC 1206, especially paragraphs 35-36:
[35] This Court's rules do not have anything specific to say about the summoning of witnesses. The provincial rules of civil procedure must therefore be referred to. Article 295 of the Code of Civil Procedure provides that any person competent to testify may be compelled to do so. The same article indicates that all persons are competent to testify if they are in a fit state to report the facts of which they have knowledge. It would seem that such knowledge must be personal. Professor Léo Ducharme has written the following:
[TRANSLATION]
While in theory any person competent to testify may be compelled to do so, in practice the only persons who may be compelled to testify are those who have personal knowledge of the facts involved in the case and who are subject to the jurisdiction of our courts. [L. Ducharme, L'administration de la preuve, 2nd ed., Montréal, Wilson and Lafleur, 1995, at page 37.]
With regard to the summoning of a Minister, Professor Ducharme stated the following at the same page:
[TRANSLATION]
Moreover, the reason section 69 of the Act respecting the Ministère du Revenu states that the Minister, the Deputy Minister and assistant deputy ministers are not compellable in proceedings to which the Deputy Minister is a party is that those individuals are normally not able to give useful testimony since they have no personal knowledge of the facts in issue. That is why the same section provides that those individuals must, upon the written application of a party served at least 30 days before the date of hearing and specifying the facts requiring testimony, designate a public servant who is aware of the facts to testify.
[36] Although there is no similar provision in the Income Tax Act, it is well settled that a Minister cannot be summoned unless he or she has personal knowledge of the facts. In Létourneau v. Powers et al., [1975] C.A. 458, the appellant had served a subpoena on the Minister of Justice and the Solicitor General of Canada. The Quebec Court of Appeal upheld the trial judge's decision quashing the subpoena. Rinfret, J.A. stated the following at page 459:
[TRANSLATION]
Neither the testimony of the Solicitor General of Canada nor that of the Minister of Justice of Quebec can help the Court judge these acts, since they were not present; the reports they might file are not in themselves proof of their content; to have any probative value, they would have to come from the persons concerned, who are already before the Court and can be questioned.
[18] Counsel for the respondent also referred to the Quebec Court of Appeal's decision in Létourneau v. Powers et al., [1975] C.A. 458, at page 459:
[TRANSLATION]
The joint record contains the parties' submissions. In short, counsel for each minister objected to the subpoenas because proceedings were brought against the defendants personally, because the two witnesses were not personally aware of what had happened in 1965 and because the documents they were asked to bring were not relevant to the action based on trespass and threats.
. . .
. . . Thus, I do not see how the testimony of the Solicitor General of Canada and the Minister of Justice of Quebec could help the Court render justice to the plaintiff in accordance with the pleadings in the plaintiff's action and within the limits of the plaintiff's allegations. I therefore quash the two subpoenas.
When the hearing was held, besides the fact that the joint record-the filing of which was the appellant's responsibility-was incomplete, I concluded that the above-mentioned objections by counsel and the judgment allowing them were well-founded; it seemed to me above all that the defendants were being blamed for specific acts, that they denied having committed those acts and that they were alleging other specific facts as justification for their conduct; the evidence had to be directed at those acts and those facts to remain relevant. I therefore felt that the appeal should be dismissed with costs.
[19] The appellant's agent, who is also her spouse, argued that the ministers in question are all aware of this case because they received letters by registered mail explaining the situation to them. He filed the letters mailed to the ministers and certain members of the Moroccan government as Exhibit A-1.
[20] The appellant's agent filed the Convention on Social Security between Canada and Morocco signed on July 1, 1998, as Exhibit A-2. At first glance, that agreement does not seem to include the Employment Insurance Act. The appellant's agent filed an agreement on social security between Morocco and Quebec dated May 25, 2000, as Exhibit A-3. The comment on Exhibit A-2 applies to that agreement as well. Exhibit A-4 is made up of the appellant's petitions to the United Nations Commission on Human Rights concerning her employment by the Moroccan embassy in Canada. Exhibit A-5 is a certificate from the said embassy to which the appellant's résumé is attached. Exhibit A-6 is a letter from the appellant to the CCRA's insurability officer, A. Chartrand, in response to Ms. Chartrand's decision of November 10, 2000.
Examination for discovery
[21] Section 18 of the Rules deals with examination for discovery:
18(1) After the time limited for replying under section 12 has expired the Court may, on application by any party to an appeal, direct
(a) any other party to the appeal to make discovery on oath of the documents that are or have been in the possession of or under the control of that other party relating to any matter in question on the appeal,
(b) that the applicant is authorized to examine on oath, for the purposes of discovery, any other party to the appeal, or
(c) that there shall be both discovery of documents and examination for discovery.
(2) The Court may specify the form of affidavit to be used for the purpose of discovery of documents.
(3) The person to be examined for discovery shall be
(a) if the other party is an individual, that individual,
...
(c) if the other party is the Minister, any departmental or other officer of the Crown nominated by the Deputy Attorney General of Canada,
...
(e) a person who has been agreed upon by the examining party and the party to be examined with the consent of such person.
(4) The Court may designate the person before whom the examination for discovery is to be conducted and direct the manner in which it shall be conducted.
(5) All evidence given at an examination for discovery shall be recorded by a court reporter appointed by the Registrar for that purpose.
(6) Any party may, at the hearing of an appeal, use in evidence against another party any part of the examination for discovery of that other party, but, on the application of an adverse party, the Court may direct that any other part of the examination, that in the opinion of the Court, is so connected with the part to be used that the last-mentioned part ought not to be used without such other part, be put in evidence by the party seeking to use such examinations.
[22] On the basis of the complexity of the appellant's Notice of Appeal, as can be seen on its face, the respondent applied under paragraph 18(1)(b) of the Rules to conduct an examination for discovery on or before August 31, 2001. Counsel for the respondent explained that the appellant and her agent referred to numerous events and raised several points of law and that such an examination for discovery would be helpful to properly understand the appellant's arguments and legal situation. In this regard, she referred to the decision by the Federal Court-Trial Division in Champion Truck Bodies Limited v. The Queen, [1986] 3 F.C. 245, especially at page 247:
... The object is to explore fully the issues raised by the pleadings, to understand the position of the party being examined and to gain admissions from him. This is all in furtherance of the goal of narrowing the issues and reducing as much as possible matters to be determined at trial....
Conclusion
[23] The respondent applied to have the Court quash the subpoenas sent by the appellant, arguing, with supporting affidavits and case law: (1) that the persons summoned have no personal knowledge of the facts in issue; (2) that the wording of the subpoenas indicates that the ministers were summoned to answer questions of law, on which a witness of fact cannot be examined; (3) that it is pointless, unreasonable and irrelevant in the circumstances to require the appearance of the four ministers summoned; and (4) that the most appropriate person to testify on the facts is the appeal officer who reviewed the appellant's file.
[24] I cannot add much to what was argued by counsel for the respondent. The ministers summoned by the appellant have no personal knowledge of the facts that led to the decision under appeal. It is not up to them to come and testify. As for the challenge to the constitutionality of the provisions at issue, it is not the ministers who must respond to it but rather counsel for the respondent minister.
[25] The motion is granted. The subpoenas against the ministers are quashed. The respondent is entitled to conduct an examination for discovery on or before August 31, 2001. The undertakings resulting from the examination for discovery will have to be fulfilled on or before September 30, 2001.
[26] The Court will contact the parties to determine an appropriate hearing date.
Signed at Ottawa, Canada, this 6th day of July 2001.
|
"Louise Lamarre Proulx" |
J.T.C.C.