Date: 19991207
Dockets: 98-1755-IT-G; 98-1758-IT-G
BETWEEN:
NORMAN JURCHISON, NORWAY INSULATION INC.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
Reasons for Order
(Delivered orally from the Bench at Toronto, Ontario, on November 26, 1999)
Bowie, J.T.C.C.
[1] These are my reasons for decision on the two motions. Norman Jurchison is the principal if not the sole shareholder of Norway Insulation Inc., which I shall call "Norway". He operates the company.
[2] As a result of an audit which turned into a criminal investigation, Jurchison and Norway were reassessed for income tax for the 1990 taxation year on June 24th, 1993. Penalties were also assessed against them. On June 25th, 1993, they were each charged with tax evasion under section 239 of the Income Tax Act (the Act). The amounts of money involved in these assessments are substantial. In the case of Norway, there is tax on approximately $166,000 of income involved, plus the penalties. In the case of Jurchison, it is tax on $100,000 of income, plus the penalties.
[3] On February 2nd, 1994, His Honour Judge T.C. Whetung of the Ontario Court (Provincial Division), as it then was, gave his judgment upon a Charter application and voir dire held before him in respect of certain evidence. He found that evidence to have been obtained in violation of the rights of the two accused under section 8 of the Charter of Rights and Freedoms. By his ruling, he held that the evidence obtained by William Chow pursuant to section 231.1 of the Act, in the course of his audit of the applicant, which commenced October 22nd, 1991, was unlawfully obtained, and his Order excluded it for the purposes of the criminal proceeding. He also ordered quashed certain search warrants obtained on the strength of that tainted evidence.
[4] It is not clear whether the Crown offered the evidence that it had gathered prior to October 22nd, 1991, or no evidence at all, but in any event an acquittal was entered in each case. The Crown appealed against the acquittals to the Ontario Court of Justice (General Division), as it then was, where the appeal was heard and dismissed by Mr. Justice LaForme.
[5] Two motions are now brought before me in each of these two appeals. The first two are brought by the Appellants, and they are said by the notice of motion to be brought pursuant to Rule 58 and Rule 62. The relief sought is the following:
(a) The determination that the Notices of Re-assessment be vacated because they are invalid and of no force and effect pursuant to Section 24(1) of the Charter of Rights and Freedoms insofar as they are based upon or rely upon evidence or information obtained as a result of the violation of the Appellants' rights under Section 8 of the Charter of Rights and Freedoms.
And I should say that I am quoting from the Notice of Motion. And:
(b) In the alternative, the determination, pursuant to Section 24(2) of the Charter of Rights and Freedoms, that all of the evidence obtained as a result of the violation is inadmissible in this proceeding and that the Minister of National Revenue be excluded from using and relying upon any evidence or information obtained as a result of the violation.
[6] The Respondent moves in each appeal on the basis of facts which I shall come to later, for orders dismissing the appeals, or alternatively requiring that Mr. Jurchison attend and submit to an examination for discovery, and for an Order requiring the Appellants' counsel to pay personally the costs thrown away, and the costs of Respondent's motion, on a solicitor/client scale.
[7] I heard argument over the course of two days this week. The trial is scheduled to take place on December 15th, and so it is expedient that I decide the matter now, rather than reserve judgment. I shall deal with the Charter applications first.
[8] The facts relating to the audit and the investigation are set out fully in the 33 pages of reasons given by His Honour Judge Whetung for his Order. The following summary is taken from the reasons for judgment of Mr. Justice LaForme, and is adequate for our purposes:
Isaac Persaud was a Certified Management Accountant who was employed by Revenue Canada during the period between September, 1990 and September, 1991. On April 4, 1991 he was assigned the responsibility of conducting a routine audit of the corporate Respondent. At that time he had only conducted one other audit.
On May 22, 1991, believing that Norway Insulation Inc. may have had some unreported sales, Mr. Persaud discussed the matter with his supervisor and the file was referred to Revenue Canada's Special Investigations (Special Investigations). He further believed that as a consequence of the unreported income the Income Tax Act had been breached. Upon referring the file to Special Investigations, Mr. Persaud ceased work on the audit.
On July 31, 1991, Mr. Mike Lemmon, a Special Investigator, was given charge of the file and upon review of Mr. Persaud's efforts and report, also believed there might be unreported income. Mr. Lemmon then sent the file back to audit and requested that other specific matters be investigated before he could be satisfied that he had reasonable and probable grounds to obtain search warrants.
The further areas of investigation, inclusive of those articulated by Mr. Lemmon, were then carried out by Mr. William Chow in October, 1991. The matter was subsequently referred back to Special Investigations under the direction of Mr. Hart, in early March, 1992. On the information obtained by Mr. Chow, an information to obtain Search Warrants was sworn, warrants were issued, and on June 30, 1992 were executed and charges followed.
[9] In the case of O'Neill Motors Limited v. Her Majesty The Queen, 96 DTC 1486, the Honourable Judge Bowman of this Court had to decide whether to vacate assessments that had been based upon Charter-tainted evidence. An application pursuant to Rule 58 had been brought in the Court to exclude the evidence. That motion was adjourned sine die, perhaps because of the obvious procedural problems in dealing with the matter that way. By cooperation of counsel for the parties, the proceeding was begun in the form of a question referred to the Court by agreement of the parties under section 173 of the Act. An agreed statement of facts was entered into and put before Judge Bowman. That statement of agreed facts included the admission that the assessments could not be sustained without the tainted evidence. At page 1495, His Honour Judge Bowman refers to that aspect of the agreement in these terms:
Second, we have counsel's very fair admission that the evidence that was seized in violation of the appellant's rights under the Charter was 'fundamental' to the assessment. It appears to be conceded that the assessments cannot be sustained without the use of the unconstitutionally obtained evidence and that if the assessments were referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that all evidence that was illegally obtained be excluded from the Minister's consideration the Minister would have no evidence on which to base an assessment.
I emphasize this passage of Judge Bowman's Reasons for Judgment because it was, in my view, essential to the remedy that he ultimately applied.
[10] In the course of his reasons, Judge Bowman expressed the view that if an application to exclude the evidence were before him he would grant it. He then went on to consider the next step: Should the assessments be vacated? He considered then the decision of Justice Hoyt of the United States Tax Court in Suarez v. Commissioner of Internal Revenue, 58 United States Tax Court Reports 792. In that case, the Court on a pre-trial proceeding, found certain evidence to have been unconstitutionally obtained. That found, the remedy applied by the Court was to exclude the tainted evidence, and to impose the burden of sustaining the assessments on the taxing authority. The following passage is quoted by Judge Bowman from the judgment of the United States Tax Court:
We believe the respondent has a duty in the case at bar not only to cleanse the evidence but also, if he wishes to be sustained in his determination herein, to present evidence to support it which is free of unconstitutional taint. We therefore conclude and hold that the determination before us, based entirely on constitutionally inadmissible evidence, carries no presumption of correctness. Because the presumption of correctness has disappeared, the respondent now has the burden of going forward with the proof to establish the existence of a deficiency with independent evidence, separate and apart from the tainted evidence.
[11] As Judge Bowman goes on to explain, this decision of the United States Tax Court was subsequently overruled on the basis of intersovereign transfers of information, which had the effect of preserving the validity of the evidence. It appears, however, that the Supreme Court of the United States, in overruling Suarez, did not express disapproval of the application of the remedy there suggested in a case where the evidence is, in fact and in law, tainted. Judge Bowman indicated at page 1495 of his Reasons for Judgment that, as he put it: "...the reasoning in Suarez commends itself". I agree with him in that conclusion.
[12] It is clear, I think, from Judge Bowman's reasons that he would have applied the Suarez remedy, but for the agreement of counsel, to which I referred earlier, that the exclusion of the illegally obtained evidence in O'Neill Motors would have left the Minister with no evidence on which an assessment could be founded. Judge Bowman, therefore, went on to quash the assessments in that case, because it was clear that a trial on the Suarez formula could only lead to that result.
[13] That judgment was upheld by the Federal Court of Appeal, whose reasons for judgment are reported at 98 DTC 6424. While there is no specific approval of Judge Bowman's remarks with respect to the Suarez formula, there is no expression of dissent from them in the reasons of the Federal Court of Appeal.
[14] It was argued before me by Mr. Jason that it is not only appropriate but necessary to do in this case what Judge Bowman did in O'Neill Motors, that is, to quash the assessments. His position is that these cases cannot be distinguished from O'Neill and that the conclusions of the two judges before whom the question of the tainted evidence has come are sufficient that I should grant the O'Neill remedy.
[15] Mr. Shipley raised a preliminary objection on behalf of the respondent. This motion is brought before me pursuant to Rule 58, and Rule 58, he says, contemplates only the decision of pure questions of law which have been raised by the pleadings, and they must be capable of determination upon facts which are not in dispute. The relevant part of Rule 58 reads as follows:
58(1): A party may apply to the Court,
(a) for the determination, before hearing, of a question of law raised by a pleading in a proceeding where the determination of the question may dispose of all or part of the proceeding, substantially shorten the hearing or result in a substantial saving of costs ...
Paragraph (2) of the rule provides that:
No evidence is admissible on an application,
(a) under paragraph (1)(a), except with leave of the court or on consent of the parties.
[16] Mr. Shipley relies on that provision in support of the proposition that, absent agreement by the parties as to the relevant facts in their entirety, Rule 58 is not available. He takes the point as well that it is only questions of law raised by a pleading that are available to be dealt with under Rule 58. The Charter violation and its consequences are not referred to in the notices of appeal in either of these appeals. Needless to say, they do not find their way into the replies to those notices of appeal, either.
[17] Mr. Shipley relies on the judgment of the late Associate Chief Judge Christie of this Court in Carma Developers Ltd. v. The Queen, 96 DTC 1803, where he considered the question of the extent to which the Court may go in determining questions under Rule 58, absent any evidence. The penultimate paragraph, of his reasons for judgment in that case reads as follows:
In summary, I am of the opinion that paragraph 58(1)(a) of the Rules is not intended as an easily accessible alternative to a trial for the disposition of complex and contentious disputes about the rights and liabilities of litigants. It is to be invoked when it is clear that the determination of all or part of a dispute by trial would be essentially redundant. That is not applicable to the appeal at hand. As I said at the hearing I think it would be an error to attempt to dispose of it under paragraph 58(1)(a).
[18] Of course, the same cannot be said of the matter before Judge Bowman in O'Neill Motors, where there was specific agreement that a determination that the evidence should not be admitted would have the necessary effect of eliminating any possible trial.
[19] Nevertheless, I take the view that when a serious constitutional question is raised, as here, and when it has been, at least in large measure, determined in another proceeding leading to conclusions there which, had they been pleaded, would no doubt give rise at least to issue estoppel as to certain facts in the appeals in this Court, procedural hurdles ought to be overcome if it is possible to do so while still doing justice between the parties. In those cases where there is a serious constitutional violation at the heart of the Appellant's application, and it is clear that the Appellant is entitled to relief, then I think this Court ought to be prepared to entertain a motion under Rule 58. The Rules contain sufficient flexibility to permit a judge to exercise that discretion.
[20] Having said that, I should make specific reference to the caveat which was added by Judge Bowman to his Reasons for Judgment in O'Neill Motors, and which was specifically approved and underscored in the Reasons for Judgment of Mr. Justice Linden in the Federal Court of Appeal. Judge Bowman said:
I would not want my conclusion in this case to be taken as a wholesale sanctioning of the vacating of all assessments where some component of the Minister's basis of assessment was unconstitutionally obtained information. Other cases may arise in which a simple exclusion of evidence is sufficient, others in which the evidence is of little or no significance in the making of the assessments or where its introduction would not bring the administration of justice into disrepute .... In the exercise of the discretion vested in the court under section 24 of the Charter one must be vigilant in balancing, on the one hand, the rights of the subject that are protected under the Charter, and on the other, the importance of maintaining the integrity of the self-assessing system. As each case arises these and, no doubt, other factors will play a role and all factors must be assigned their relative weight. In the circumstances of this case I have concluded that the most appropriate exercise of my discretion is to vacate the assessments.
As to that, Mr. Justice Linden said:
I would like to specifically underscore the words of the Tax Court Judge, with which I fully agree, to the effect that this type of extreme remedy must not be considered to be an automatic one, being reserved only for cases of serious violations where other remedies are insufficient.
I pause here to observe that the question of the seriousness of the violations in this case was thoroughly canvassed by His Honour Judge Whetung, and by Mr. Justice LaForme. Mr. Justice Whetung said, at page 32 of his Reasons for Judgment, that he concluded:
... not without great reluctance, that the administration of justice would suffer far greater disrepute from the admission of this evidence than from its exclusion. This Court must not be seen to condone conduct of this sort evidenced by the facts of the present case on the part of officials who wield substantial power over private citizens and who do not exercise this power in thoughtful or knowledgeable fashion, and in fact do so in an overt fashion without full knowledge of the powers available to them which are less overt and who do so in a fashion which is oppressive to the rights of individuals.
[21] This passage was adopted and agreed with by Mr. Justice LaForme, who said of the individuals employed in the Special Investigations unit of Revenue Canada:
... They deliberately pursued a course of conduct which they knew, or ought to have known, required proper prior authority based upon a proper review of the relevant competing interests. Instead they embarked upon a course of investigation, through Mr. Chow, which they knew, or ought to have known, was outside the scope of section 231.1(1) of the Income Tax Act. It is also worth reiterating that they did so for the specific purpose of gathering evidence for the laying of offences under the Act. Moreover, this course of conduct was undertaken in the face of alternate methods prescribed by the Income Tax Act, which the Appellant admits would have allowed them to obtain the evidence, but which they chose to ignore. ...
[22] I think it would be inappropriate for me to re-try the issue of the appropriateness of exclusion of the evidence in this case. I do not discount the possibility that there may be cases in which there are considerations pertinent to the remedy to be granted under section 24 of the Charter which are different in proceedings of a civil nature before the Tax Court than those which prevail in criminal proceedings before a court of criminal jurisdiction. However, there was no basis asserted in the argument before me to make such a distinction in the present case, and no specific basis for it occurs to me.
[23] My conclusion, therefore, as to the first question is that the Appellants before me have established, on the basis of the reasons for judgment of Judge Whetung and Mr. Justice LaForme, that this is an appropriate case for this Court to determine before trial that the Charter-tainted evidence should be excluded. It would impinge on the fairness of a trial to permit that evidence to be used, and, in particular, its use to sustain the penalties assessed would, I think, diminish the public perception of the fairness of the administration of justice.
[24] I come now to the second issue: Is it clear that the Appellant is entitled to have the additional relief that these assessments be vacated? For two reasons, I have come to the conclusion that the answer to this question is "no". First, as to both of the Appellants, it was contended by the Respondent before me that I should distinguish the O'Neill Motors case because there it was established by agreement that no evidence would remain to sustain the assessments. That is not the case here. Mr. Persaud had some untainted evidence which led him to conclude that there was unreported income. For the Appellants, Mr. Jason says that it is clear from the reasons of the Provincial Court judge that that evidence is insufficient. Certainly it is evident that it was not sufficient to sustain a criminal charge. It is less than clear that it could not sustain an assessment under the Act. This is a matter that the Appellants could have dealt with. They could have put the transcript of the evidence given before the Provincial Court before me. I might then know exactly what the untainted evidence amounts to. They could also have examined a representative of the Minister for discovery, and, through that examination, established on a transcript how much or how little untainted evidence there is. They chose to do neither.
[25] Counsel for the Appellants waived the right to discovery. By letter of October 6th, 1999, he indicated: "At this time we do not require discovery." The right to have the discovery expired on November 19th, pursuant to my order made following a status hearing on September 8th.
[26] My other reason for reaching the conclusion that it would not be just to quash the assessment at this stage in these cases, -- or at least in the Norway case, -- is that in the Norway case it is admitted in the notice of appeal that the income of the Appellant was understated. Paragraphs 3, 4, 5 and 6 of the notice of appeal read as follows.
3. In the 1990 taxation year the Corporation used two bank accounts to conduct its business.
4. Due to an error of the accountant in preparation of the tax returns for the Corporation, accountant under reported income of the Corporation in the sum of $166,961.00.
5. The Appellant and the bookkeeper of the Appellant had supplied detailed information to the accountant for preparation of the financial statements and tax returns for the 1990 year which disclosed the aforesaid unreported income.
6. Due to the omission of the accountant, the income was understated.
[27] The Appellant has never moved to withdraw this admission, presumably because it is true. In that circumstance, I could not find it to be appropriate and just to relieve the Appellant Norway of its admitted liability for income tax in the amount of $166,961. I propose, therefore, to apply here the Suarez formula.
[28] There is a further issue to be dealt with on this motion, however, which did not arise in O'Neill Motors, and that is the right that the respondent would normally have to examine the Appellants for discovery. Counsel for the Respondent has brought a separate motion, to which I will turn momentarily, to compel Mr. Jurchison to attend and be examined as an individual and as an officer of Norway. However, it is an issue which must be dealt with in the context of the Charter motion, as it potentially affects the fairness of the trial. In my opinion, an examination for discovery in this case of Mr. Jurchison would almost certainly have the result of compelling him to respond to a line of inquiry whose genesis lies in the inadmissible evidence. As Mr. Jason put it in argument, that evidence would be a road map to guide the examination of Mr. Jurchison.
[29] I do not rule out the possibility that in other cases the Court may be able to fashion limits upon an examination for discovery which would permit some discovery whose product would not be derivative. However, I do not think this is such a case. The issues here are narrow, and the breach of section 8 of the Charter occurred early in the investigation. Counsel were not able to suggest any reasonable way to permit a limited discovery of Mr. Jurchison, and I do not believe that one could be devised.
[30] I therefore make the following order:
1. That the evidence obtained by William Chow pursuant to section 231.1 of the Act in the course of his audit on the applicant which commenced on October 22nd, 1991, is inadmissible at the trial of these appeals, as is any evidence obtained pursuant to the search warrants which were based upon that inadmissible evidence.
I have defined the tainted evidence in precisely the same terms as did Judge Whetung, since he had evidence before him as to the circumstances of the audit which turned into an investigation.
2. At the trial, the onus shall be upon the Respondent to establish the validity of the assessments. There shall be no presumption of correctness of those assessments.
3. There shall be no examination for discovery of the Appellants by the Respondent.
[31] This Order, of course, may have the practical effect that there is no trial. That is something that I cannot know, for reasons that I have already expressed. If the Respondent has untainted evidence that would found an assessment as to either the tax or the penalties in the one case or as to the penalties in the other, it can lead that evidence. The Appellants, if a case is made, will then have to meet it.
[32] The Appellants have achieved substantial success on a motion which is likely to shorten, if not eliminate, the trial. They should have party and party costs of the motion in any event of the cause, including one counsel fee for one day.
[33] This brings me to the Respondent's motion, which seeks an Order that Mr. Jurchison attend to be examined; and ancillary relief with respect to costs thrown away. I should say that the motion is, in fact, for an Order dismissing the appeals for failure of the Appellants to attend, and in the alternative for an Order for re-attendance and relief as to costs, and, in addition, an adjournment of the hearing of the appeal now fixed for December 15th, to permit the examination for discovery to take place.
[34] It goes without saying that the appeals will not be dismissed, and I have dealt with the matter of the Respondent's right to examine for discovery in the context of the first motion. Since there will be no examination for discovery, there will be no postponement of the trial.
[35] That leaves simply the matter of the costs thrown away. The facts which are relied upon by the Respondent in respect of the claim to have the costs thrown away made payable personally by Mr. Jason, counsel for the Appellants, on a solicitor/client scale, are the following. The notices of appeal in these cases were filed in June, 1998. At a status hearing held before me on September 8th, 1999, it was ordered that examinations for discovery, including any undertakings arising out of the oral examination, were to be completed by November 19th, 1999, preliminary to a trial fixed to begin on December 15th.
[36] On the day of that status hearing, Ms. Thorn, counsel for the Respondent, wrote to Mr. Jason proposing that the discovery of Mr. Jurchison take place on October 15th, 1999. Having received no reply to her letter of September 7th, Ms. Thorn wrote to Mr. Jason again on October 1st, 1999, to indicate that, not having heard from him, counsel had scheduled other matters, and proposing that November 8th be the date for the examination for discovery.
[37] On October 6th, Mr. Jason responded to this letter indicating that Mr. Jurchison would be available on Monday, November 8th, and on the following day Ms. Thorn wrote to Mr. Jason to confirm that the examination would take place on November 8th at 9:30 a.m. in the offices of the Department of Justice.
[38] At 9:40 a.m. on November 8th, some ten minutes after the examination for discovery was due to begin, Ms. Thorn picked up a message on her voice mail which had been left by Mr. Jason at 9:05 a.m. saying:
Eleanor, it's Bob Jason. We have a discovery this morning regarding Mr. Jurchison and Norway Insulation. I am calling you about that. I think I want to bring a motion in this matter. Can you call me up, please. 941-8828.
At 10 a.m. Mr. Jason attended at the offices of the Department of Justice without Mr. Jurchison, to announce that there would be no discovery, but a motion instead. He presented a rough draft of the notice of motion and left.
[39] On the examination of Ms. Leung, of counsel for the Appellants, on her affidavit filed in this motion, it appeared that Mr. Jason had given no consideration to the implications of the O'Neill Motors case and the earlier criminal proceedings against these Appellants until Ms. Leung, who had recently joined the firm, brought this issue to his attention on Friday, November 5th, immediately prior to the scheduled Monday discovery. The motion, it appears, was conceived on that Friday, nurtured over the weekend, and born sometime after the examination for discovery was scheduled to take place.
[40] Mr. Shipley's position is that this cavalier attitude, without so much as a phone call on November 5th to discuss what was then at least a probable, if not a certain, motion to be brought by the Appellants, calls for an Order for costs thrown away on a solicitor/client basis against the solicitor personally.
[41] The judgment of the Supreme Court of Canada in Young v. Young, [1993] 4 S.C.R. 3, which, inexplicably, was not cited to me by either counsel, is very clear on the subject of when costs should be awarded on a solicitor-client basis, and when they should not, and as to when they should be awarded against a solicitor personally, and when they should not.
[42] Madam Justice McLachlin's reasons in that case, which are the reasons of the Court as to this issue, say this in connection with awards of costs against counsel, at page 135:
... The basic principle on which costs are awarded is as compensation for the successful party, not in order to punish a barrister. Any member of the legal profession might be subject to a compensatory order for costs if it is shown that repetitive and irrelevant material, and excessive motions and applications, characterized the proceedings in which they were involved, and that the lawyer acted in bad faith in encouraging this abuse and delay. ...
[43] There is no room to make such an Order simply because counsel's behaviour does not rise to the level of civility which at one time did, and still should, characterize the way in which members of the bar conduct their dealings with one another. I will not make such an Order in this case.
[44] That said, the Respondent is clearly entitled to have the costs thrown away as a result of the failure of counsel for the Appellants to bring this motion in a timely way, or even to advise on Friday, November 5th, when it first became apparent that a motion was at least a high probability, if not a certainty. The criminal proceedings and the judgment of Judge Bowman long pre-date the filing of the notices of appeal in these cases. The judgment of the Federal Court of Appeal in O'Neill Motors was released a few days before these notices of appeal were filed, and yet the Charter issues were not pleaded, no amendment has ever been sought to plead them, and the issue was raised before me not at the eleventh hour, but after midnight. The Respondent is entitled to costs thrown away.
[45] In Young v. Young, Madam Justice McLachlin says with respect to solicitor/client costs at page 134:
... Solicitor-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties. ...
[46] I do not think that Mr. Jason's conduct sank to that level. It was cavalier, certainly, and rude as well. He did not adopt the apologetic tone that I should have thought was called for, as he attempted to remedy his failure to plead the Charter issues, and to bring the motion on at an early stage of this litigation. I do not think it is a case for solicitor/client costs. The purpose of costs, as Madam Justice McLachlin emphasized, is to compensate; it is not to teach good manners.
[47] Mr. Shipley claims travel expenses in the amount of $710 in connection with his attendance at Toronto on the morning of Monday, November 8th. He lives and works in Ottawa, and I think it is reasonable to assume that a telephone call by Mr. Jason on Friday afternoon would most likely have resulted in Mr. Shipley not making the trip from Ottawa to Toronto for the examination for discovery. Nevertheless, the Department of Justice has a large regional office in Toronto, and there is a large contingent there of senior tax litigation lawyers quite capable of litigating these appeals. It is not, I think, for the Appellants to compensate the Department of Justice for Mr. Shipley's travel, simply because the management of that department chooses to assign the conduct of this matter to somebody who lives and works outside the City of Toronto. I do not allow the travel costs. The costs thrown away are fixed at $2,000 payable in any event of the cause and forthwith.
[48] As is my practice when making an award of costs thrown away as the result of the conduct of counsel, I direct that a copy of these Reasons for Order be sent by counsel for the Appellants to the Appellants, and that he indicate by letter to the Registrar of the Court, when this has been done.
Signed at Ottawa, Canada, this 7th day of December, 1999.
"E.A. Bowie"
J.T.C.C.