Date: 19991117
Docket: T-1724-99
PRESENT: THE HONOURABLE MR. JUSTICE D.R. CAMPBELL
BETWEEN:
ANGELO DEL ZOTTO
Applicant
- and -
THE MINISTER OF NATIONAL REVENUE
and JOHN EDWARD THOMPSON
Respondents
ORDER
I hereby order that the hearing of these judicial reviews be commenced on
December 3, 1999 at 9:00 a.m. at Toronto;
I also hereby order that the material already filed on the stay application herein is accepted in satisfaction of the Federal Court Rules for the judicial review hearing.
Leave is granted to both parties to file supplementary material.
Judge
OTTAWA
Date: 19991117
Docket: T-1724-99
PRESENT: THE HONOURABLE MR. JUSTICE D.R. CAMPBELL
BETWEEN:
ANGELO DEL ZOTTO
Applicant
- and -
THE MINISTER OF NATIONAL REVENUE
and JOHN EDWARD THOMPSON
Respondents
ORDER
BY CONSENT THIS COURT ORDERS THAT all transcript and exhibits filed from November 22nd to the last sitting of the Inquiry prior to the hearing of the judicial review on December 3, 1999 are to be made available to the Applicant for the purpose of the judicial review.
Costs of the transcripts are to be borne by the Applicant in the normal way.
Judge
OTTAWA
Date: 19991117
Docket: T-1724-99
BETWEEN:
ANGELO DEL ZOTTO
Applicant
- and -
THE MINISTER OF NATIONAL REVENUE
and JOHN EDWARD THOMPSON
Respondents
REASONS FOR ORDER AND ORDER
[Delivered from the Bench at Ottawa, Ontario
on November 17, 1999]
CAMPBELL J.
This is an application to stay the proceeding before a Hearing Officer under s. 231.4 of the Income Tax Act which is scheduled to commence on November 22, 1999, and continue in the first stage during the two week period thereafter. At the end of this first stage, continuation dates will be set.
The judicial review application at the base of this stay application before me challenges the jurisdiction of the Hearing Officer, and also challenges findings of law made by the Hearing Officer with respect to the process of the inquiry, in particular, the content of the right of representation by counsel, disclosure, and the legality of subpoenas issued.
It is agreed that I do not need to decide whether these arguments raise a serious question to be tried or where the balance of convenience lies, if I find that the second leg of the tripartite test for granting a stay, being proof of irreparable harm, has not been met.
With respect to the question of irreparable harm, this factor must be decided with regard to the practical factual context of the inquiry and the judicial review hearing scheduled herein.
By consent, all parties concerned with the judicial review issues respecting the inquiry have agreed that the hearing of the judicial review will commence on December 3, 1999 at 9:30 am in Toronto. As mentioned, the inquiry before the hearing officer is to commence on November 22, 1999 and it is anticipated that the evidence of two witnesses will be taken on the first stage between November 22 and December 3.
The irreparable harm complained of is that during the first stage of the inquiry, any evidence taken will be in the hands of the Minister of National Revenue, and, regardless of the fact that it might not be able to be used in subsequent proceedings against Mr. Del Zotto if the judicial review application succeeds, either as a result of the application of s. 24(1) or s. 24(2) of the Charter or common law judicial power to exclude evidence, it will be available to the Minister upon which to act in derivative investigations. It is argued that the harm that the release of this information might cause is non-compensatory and, therefore, is irreparable.
The applicant also argues that simply holding what is alleged to be an unlawful inquiry is, itself, irreparable harm.
With respect to these arguments, I put weight on the respondent"s argument that there is no evidence of potential harm to Mr. Del Zotto before me, and that there are only expressions of mere suspicion or speculation that such harm will exist if the evidence of the two witnesses intended to be called to testify between November 22 and December 3, or indeed any potential witness, is in the hands of the Minister.
I do not agree that holding what is alleged to be an unlawful inquiry is itself irreparable harm. It is well established that the proof required of irreparable harm must be clear and definite. Contested arguments about the lawfulness of the inquiry do not meet this standard.
It is agreed that if evidence of irreparable harm that meets the required test is indeed available at the time that the judicial review commences, any court order to issue as a result will be at the discretion of the judge hearing the application.
I find, therefore, that at this time there is no proof of irreparable harm. Accordingly, this application for a stay is dismissed.
Costs in the cause.
Judge
OTTAWA