Date: 19991123
Docket: T-844-99
BETWEEN:
MAIN REHABILITATION CO. LTD.
ROBERT TADDEO
Applicants
- and -
MINISTER OF NATIONAL REVENUE
JOE TUCCI and SAMARJIT GILL
Respondents
REASONS FOR ORDER AND ORDER
LAFRENIÈRE P.:
[1] The Applicants moved for an order compelling the tribunal to comply with Rules 317 and 318 of the Federal Court Rules, 1998. In the alternative, the Applicants requested an order converting the present application into an action. The Respondents subsequently brought a cross-claim seeking an order to strike the only affidavit filed by the Applicants in support of their motion, to dismiss the Applicants" motion and to strike the originating notice of application. The grounds for the cross-motion are that:
| (a) the Applicants failed to submit Mr. Rodrigues to cross-examination on his affidavit in support of the Applicant"s Motion dated June 25, 1999; |
| (b) the Applicants have failed to serve and file supporting affidavits to their notice of application in accordance with Rule 306 of the Federal Court Rules, 1998; |
| (c) Rules 81, 83, 84, 97, 306, 363 and 365 of the Federal Court Rules, 1998. |
[2] Because the issues on the two motions overlapped, they were heard together. At the conclusion of the hearing, an adjournment was granted to allow counsel to submit further written representations on issues raised by the Court during the course of the hearing.
[3] After supplementary written representations were submitted by the parties, counsel for the Applicant forwarded a letter to the Court requesting that I recuse myself from disposing of the two motions under reserve.
[4] First, counsel charges that I am ignorant of the rules of practice and procedure. Second, he alleges that there are reasonable grounds for an apprehension of bias arising from my "hostile and personal animus against (him)" during the course of the hearing and one week later when he appeared before me on another matter. Third, he contends that in two separate motions in which he represented other clients, I rendered adverse decisions against those clients motivated by my personal dislike of counsel and, presumably, not on the merits of the case. The Respondents, although copied with the letter from counsel for the Applicants, have taken no position on the recusal request.
[5] The law relating to recusal applications was extensively canvassed by Teitelbaum, J. in Buffalo v. Canada (Minister of Indian Affairs and Northern Development (1997), 141 F.T.R. 109. He cites with approval the conclusion of Hoth, J.A. in Blanchard v. Canadian Paperworkers Union, Local 263 et al. (1991), 113 N.B.R. (2d) 344 that a decision to disqualify should "only be exercised sparingly and in the most clear and exceptional circumstances".
[6] In Middelkamp v. Fraser Valley Real Estate Board, ©1993ª B.C.J. No. 2965 (T.D.), Boyd, J. dealt with a request for disqualification on numerous grounds, including allegations of having shown antipathy or hostility towards counsel. In dismissing the request, she said:
| The remarks upon which Mr. Rankin has focussed were made during two particular exchanges with plaintiffs" counsel. I wish to assure the plaintiffs Mr. Middlekamp and the corporate plaintiff that the remarks made were not made with any prejudgment of this action in mind. Nor did I mean to thereby display any antipathy towards the plaintiffs or plaintiffs" counsel. To the contrary, in expressing the concerns which I did, it was my intention to exercise proper judicial control over the process in his courtroom (including plaintiffs" counsel"s own conduct), and thereby ensure the smooth, expeditious hearing of this trial. As the trial judge, it is not my right but my duty to act in circumstances such as those which have occurred here. The words were spoken in the interests of all the parties in this case, including the plaintiffs themselves. |
| The record, in my view, will not provide the foundation for a reasonably well- informed objective person to properly have a reasonable apprehension of bias. |
| Finally, Mr. Rankin has submitted that even if there are no grounds for disqualification I ought, nevertheless, to disqualify myself since it will now be impossible for me as the trial judge to hear the plaintiffs" case with fairness and impartiality. Mr. Rankin asks: ".... could the reasonable observer expect the judge to remain impartial and independent while the person who uncovered this information is a litigant in a case before her?" This is what Mr. Cadman has called the Catch 22 argument. |
| I cannot accede to such an argument since to do so, in my view, would establish a very dangerous precedent in these courts. In effect, I would be inviting disgruntled, unhappy litigants or their counsel to make whatever allegations they wished, in support of an application for the judge to disqualify himself or herself. If the allegations failed to provide a proper foundation for a finding of bias or a reasonable apprehension of bias, the litigant could nevertheless take comfort in the knowledge that the mere making of the allegations would, by their very nature, taint the process and force the disqualification of the judge. This very danger was recognized by Chief Justice McEachern, C.J.B.C. in G.W.L Properties Limited v. W.R. Grace & Company of Canada Ltd. (1992), 74 B.C.L.R. (2d) 283 (B.C.C.A) where he said: |
| A reasonable apprehension of bias will not usually arise unless there are legal grounds upon which a judge should be disqualified. It is not quite as simple as that because care must always be taken to insure that there is no appearance of unfairness. That, however, does not permit the court to yield to every angry objection that is voiced about the conduct of litigation. We hear so much angry objection these days that we must be careful to ensure that important rights are not sacrificed merely to satisfy the anxiety of those who seek to have their own way at any cost or at any price.... |
[7] An appeal from the above decision was dismissed by the British Columbia Court of Appeal in Middelkamp v. Fraser Valley Real Estate Board (1993) 83 B.C.L.R (2d) 257. In her reasons for judgment, Madam Justice Southin clarifies that "bias means a partiality to one side of the cause or the other" in the following words:
| As to the question of bias, Mr. Rankin pointed to in his opening and has reiterated in his reply many remarks which have been made by the learned trial judge over the course of these 60 days which some might think were rather sharper than they ought to have been. That is a matter of perhaps one would say taste. Some judges by nature are silent; some of us talk perhaps more than we should. Whether some one or all of these remarks might better not have been said I do not propose to discuss. Every experienced counsel has from time to time felt herself unfairly treated by receiving a lashing from the sharp edge of the tongue of a judge. I remember the feeling myself. |
| As I believe the Chief Justice of this Court has said on more than one occasion, a trial is not a tea party. But bias does not mean that the judge is less than unfailingly polite or less than unfailingly considerate. Bias means a partiality to one side of the cause or the other. It does not mean an opinion as to the case founded on the evidence nor does it mean an obvious lack of respect for another counsel, if that counsel displays in the judge"s mind a lack of professionalism. |
| The relationship between bench and bar is sometimes difficult . If the system is to work, there must be restraint on both sides and also an understanding by the bar of the judicial process. The judges rarely come to anything with a closed mind. |
| Bias does not equate with what might be found in the end to be an unsatisfactory trial. Jones v. National Coal Board is not a judgment founded on bias or apprehension of bias. There may be a point where the concepts of bias and an unfair trial march so close together as to meld. I need not address here where that point is. |
| An unsatisfactory trial is not grounds for attack in the middle of the trial but for appeal from a judgment. In the course of his reply Mr. Rankin submitted that these remarks that have been made gave rise to an apprehension of bias. Let me say, as I see the matter at present, that it is never enough to disqualify a judge that someone not knowing all the facts or understanding the court process might have an apprehension of bias. There must be an evidentiary foundation for a conclusion that the judge was indeed biased. I see nothing in all the material which has been put before us to show any foundation for a conclusion that the learned trial judge has a partiality for the defendants" case rather that the plaintiffs" case. There is nothing that I have been shown that shows any comment by her on the merits of this litigation which could in any way be taken as untoward. |
[8] I do not intend to refute each and every allegation made by counsel for the Applicants in his letter. To begin with, his personal opinion as to my competence is clearly irrelevant to the question of bias. Furthermore, I infer from the decisions cited above that bias does not arise when a judge, or in this case a prothonotary, seeks clarification from counsel making at times contradictory and tenuous submissions. The comments which I addressed to counsel in his two appearances before me were directed solely to the soundness of his argument and not towards him personally. Finally, an adverse finding against a party cannot by itself serve as grounds for bias. The appeal process is the proper forum to obtain redress if procedural unfairness is alleged. As a result, I have concluded that the recusal request should be denied.
[9] As indicated earlier, the two motions brought by the parties are interconnected. The following facts can be gleaned from the record.
[10] The Applicants filed an originating notice of application on May 14, 1999 seeking to set aside a decision by certain officers of Revenue Canada, Mr. Joe Tucci and Ms. Samarjit Gill ("the tribunal"). The decision in question was to complete an audit of the corporate Applicant, Main Rehabilitation Co. Ltd. ("Main Rehabilitation") for its 1996 and 1997 taxation years and to undertake an audit for the 1998 taxation year and was communicated to Main Rehabilitation by letter of Ms. Gill dated May 11, 1999.
[11] The originating document included a request that the Respondents produce a copy of the reasons for decision and the entire file in the possession of the Respondents, including:
| (a) all complaints and or "anonymous" calls and/or correspondence received by the Respondents by any third parties; |
| (b) all audit documents including "T2020s" |
| (c) any and all other material(s) in the Respondent"s [sic] file with respect to the Applicants; |
[12] On June 2, 1999, counsel with the Department of Justice objected to the production of any of the requested documents in accordance with Rule 318(2) on the basis that the request was an abuse of process in that the Respondents had no legal duty to produce the requested documents and that resort to Rule 317 by the Applicants would deprive the Respondents of their right to defend the application for mandamus.
[13] Two days later, on June 4, counsel for the Applicants acknowledged receipt of the objection to production and responded by letter as follows:
| Please indicate to me by fax today your availability dates for a motion to compel production or in the alternative to convert this judicial review into an action. Please provide me with your dates for the months of July and August and what is convenient for you in order that I may make a motion returnable. If I have not heard from you by Tuesday, I will simply set it down unilaterally in accordance with the Rules. |
[14] Although counsel for the Respondents promptly provided dates as requested, three weeks elapsed before the Applicants" present motion, including the supporting affidavit of Roger Rodrigues, were served and filed. In the interim, the period under Rule 306 within which the Applicants could serve and file their affidavit and documentary exhibits in support of the application for judicial review expired. Parenthetically, the Applicants" motion was made returnable over two months later on September 13, 1999. The delay in scheduling the motion shall be addressed later in these reasons.
[15] By letter dated July 22, 1999, counsel for the Respondents advised the Applicants that they were withdrawing their objection to production under Rule 317 and enclosed a certified copy of the documents they considered relevant to the application. These materials were transmitted concurrently to the Registry.
[16] Notwithstanding receipt of a certified record of the tribunal, the Applicants persisted with their motion. Consequently, the Respondents reiterated their earlier request to cross-examine the affiant of the Applicants, Mr. Rodrigues. They also served the Applicants with the affidavit of Samarjit Gill on September 3, 1999 in opposition to their motion. The parties ultimately agreed that cross-examinations would take place on September 10, 1999.
[17] The Applicants at some point discovered that the affidavit of Ms. Gill had yet to be filed with the Court. On the appointed day, counsel for the Applicants objected to submit Mr. Rodrigues to cross-examination on the grounds that the Respondents were not entitled to cross-examine until all of the Respondents" affidavit material was filed. Counsel also declined to cross-examine Ms. Gill, who was produced by the Respondents, because her affidavit had not been filed. Despite receiving assurances from counsel for the Respondents that he did not intend to file any further affidavits and that Ms. Gill"s affidavit would be filed shortly, the Applicants maintained their refusal to submit their affiant to cross-examination.
[18] The Respondents now seek to have the affidavit of Mr. Rodrigues struck and the motion dismissed as a result of the Applicants" refusal. Rule 83 provides for cross-examination as of right on affidavits filed in a motion. Rule 97 lists a number of possible sanctions where a party fails to attend an oral examination or refuses to take an oath. In Bayer AG et al. v. Apotex Inc. et al (1998), 154 F.T.R. 229, Rothstein, J (as he then was) struck an affidavit after setting out the following principles:
| In procedural disputes such as this one in which the court is required to exercise its discretion having regard to fairness and the expedition of proceedings, each case will turn on its own facts. However, it is important to note that, as a general rule, affidavits will be struck if the deponent does not appear for cross-examination and replacement affidavits will not be allowed if there are not justifiable grounds. |
[19] The Applicants" refusal to submit Mr. Rodrigues to cross-examination was based on an incorrect assumption that the Respondents were required to file their affidavit material before being entitled to cross-examine. In fact, Rule 84(1) provides that a party may not cross-examine on its opponent"s affidavits until the party has served its own affidavits. The Applicants" refusal was therefore unjustified. Consequently, the affidavit of Roger Rodrigues should properly be struck.
[20] Even if I were inclined to admit the affidavit of Mr. Rodrigues into evidence, I am not persuaded that it sets out sufficient facts which would entitle the Applicants to further production of documents from the tribunal. The requirement to produce ensures that the record that was before the decision-maker is before the Court. It is not intended to facilitate discovery of all documents that may be in the decision-maker"s possession [see Canada (A.G.) v. Canada (Information Commissioner) (1998), 135 F.T.R. 254 (T.D.)].
[21] Mr. Rodrigues complains in his affidavit about having to sift through voluminous documentation already provided by Ms. Gill. He then takes issue with the fact that the Department of Justice filed the objection pursuant to Rule 318(2) on behalf of the tribunal. There is also a bald allegation that certain documents are incomplete. These assertions do not assist the Court however in determining whether the tribunal has complied with Rule 317 and 318.
[22] Mr. Rodrigues further states in his affidavit that "field notes" have been refused. However, the relevance of these documents to the issues in the application is not obvious. The uncontradicted evidence before me is that all relevant tribunal documents have either been produced or are in the possession of the Applicants. As such, I conclude on the evidence before me that the tribunal has complied with the requirements of Rule 317 and 318. Consequently, the Applicants" motion is dismissed.
[23] The Respondents have brought a cross-claim to strike the originating notice of motion on the grounds that the Applicants have not served their supporting affidavit material in accordance with Rule 306. In addition to the affidavits and materials already filed, the Respondents rely on the affidavit of Donna Dorosh and the transcript of the submissions of counsel taken on September 10, 1999. The Applicants have not filed any material in response to the cross-claim, nor have they cross-examined Ms. Dorosh on her affidavit.
[24] Under Rule 306, the Applicants" affidavits were to be filed within 30 days after the filing of the notice of application. Counsel for the Applicants submitted that the time for complying with Rule 306 was automatically stayed pending disposition of their motion to compel production of the tribunal record. He cited the decision of Reed, J. in Abaev v. Canada (Minister of Citizenship and Immigration) , IMM-14-99, 9 March 1999 (Fed. T.D.) in support of this proposition and, more particularly, the following passage:
| Such a conclusion is also consonant with the scheme of the Rules and their context as a whole. The Rules clearly intend that the applicant have access to the relevant tribunal material before his or her affidavits are required to be filed, in order to review that material to see if it is relevant for the purpose of the preparing of the affidavits. The Rules allow for a ten day difference between the transmitting of the material and the filing of the affidavits. The action taken in the present case did not constitute the transmitting of the material to the applicant within the required time. |
[25] I do not interpret the above excerpt as supporting counsel"s contention that a party is relieved from complying with the normal time constraints set out in the Rules merely because a tribunal record has not been provided or is incomplete. First, I observe that Rule 306 requires the filing of the supporting affidavit material within 30 days after filing the notice of application, and not 10 days after production of the tribunal record under Rule 317 and 318. Secondly, the Abaev decision, supra involved an application for extension of time by an applicant who wanted to rely on the tribunal record before filing his affidavit. It would appear that an application for an extension of time is therefore the proper procedure in the circumstances.
[26] I cannot ignore the fact that the Applicants brought their motion after the time to comply with Rule 306 had expired. No justification has been provided for the delay in bringing their motion. Moreover, the motion was made returnable over three months after the Respondents" objection had been communicated to the Applicants. The Applicants" delay in moving their interlocutory motion along remains unjustified and unacceptable. It is incumbent on a moving party to proceed promptly especially in light of the recent amendments to the Federal Court Rules which require that a requisition for hearing date be filed within 180 days of the issuance of the notice of application.
[27] In Delisle v. Canada (Procureur général) et al., (1996), 121 F.T.R. 256, Prothonotary Morneau made the following comments regarding the consequences of the Applicant"s failure to file an Application Record under the former Rules:
| Based on this court"s judgments and the scheme of rules 1600 to 1620, it seems to me that once an applicant in a specific situation has been denied permission under rule 1619 to disregard the requirement of filing an application record under rule 1606, the applicant"s application for judicial review will in general be struck out. |
| According to both the Rules and this court"s judgments, it would seem that the filing of an applicant"s application record under Rule 1606 is a crucial step. This step appears to be a "sine qua non" for taking or carrying on with the other steps needed to perfect an application for judicial review. As regards the Rules, it is clear from Rule 1607(1) that the respondent"s application cannot be filed until after the applicant"s application record. |
[28] The filing of affidavit material under Rule 306 is an integral procedural step. The failure by the Applicants to file their supporting affidavit material has seriously delayed the proceeding since the Respondents right to file affidavit material under Rule 307 is only triggered once the Applicants have complied with Rule 306. Moreover, the Respondents will suffer serious prejudice should this matter be allowed to proceed. There is uncontradicted evidence before me that the Applicants have refused to allow the audit to proceed because of the present litigation and that the 1996 taxation year of Main Rehabilitation will become statute-barred on December 16, 1999.
[29] The Respondents" motion for dismissal of the application for judicial review based on the Applicants" unexcused failure to file their affidavit material under Rule 306 is justified in the circumstances. The Applicants have been provided an opportunity to satisfactorily explain the delay in the proceeding or seek an extension of time to comply with the Rules , yet have failed to do either. The Respondent"s motion to strike the application is therefore allowed.
[30] In light of my conclusion above, I need not deal with the Applicants request to convert the application to an action. It should be noted however that no argument was directed to this question at the hearing of the motion, nor do the materials provide a basis for granting the relief sought.
ORDER
[31] For the reasons set out above, the affidavit of Roger Rodrigues sworn June 25, 1999 is struck out, the Applicants" motion to compel the tribunal to comply with Rules 317 and 318 is dismissed and the Respondents" motion to strike the application for judicial review is allowed. The Respondents shall have their costs of the two motions and the application.
"Roger R. Lafrenière"
Prothonotary
TORONTO, ONTARIO
November 23, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-844-99 |
| STYLE OF CAUSE: MAIN REHABILITATION CO. LTD. |
ROBERT TADDEO
- and -
MINISTER OF NATIONAL REVENUE
JOE TUCCI and SAMARJIT GILL
| PLACE OF HEARING: TORONTO, ONTARIO |
| DATE OF HEARING: MONDAY, OCTOBER 18, 1999 |
REASONS FOR ORDER
| AND ORDER BY: LAFRENIÈRE, P. |
DATED: TUESDAY, NOVEMBER 23, 1999
ORAL AND
| WRITTEN SUBMISSIONS BY: Mr. Rocco Galati |
| For the Applicants |
| Mr. John R. Shipley |
| For the Respondents |
| SOLICITORS OF RECORD: Galati, Rodrigues, & Associates |
Barristers & Solicitors
| 637 College St., Suite 203 |
| Toronto, Ontario |
| M6G 1B5 |
| For the Applicants |
| Morris Rosenberg |
Deputy Attorney General of Canada
| For the Respondents |
FEDERAL COURT OF CANADA
Date: 19991123
Docket: T-844-99
Between:
| MAIN REHABILITATION CO. LTD. |
ROBERT TADDEO
Applicants
- and -
MINISTER OF NATIONAL REVENUE
JOE TUCCI and SAMARJIT GILL
Respondents
REASONS FOR ORDER
AND ORDER