Citation: 2006TCC696
Date: 20061221
BETWEEN:
and
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Motion heard by telephone conference call on December 21, 2006
By: The Honourable Justice D.W. Beaubier
Participants:
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Ryan Lay |
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REASONS FOR ORDER ANDORDER
Beaubier, J.
[1] This motion by Appellant's counsel dated December 12, 2006, was heard by telephone conference on December 21, 2006. The motion is for the Court to name Tom Cooper of CRA to be examined for discovery by Appellant's counsel pursuant to subsection 93(3) of the General Procedure Rules. Subrule 93(3) reads:
...
Who May be Examined
93.
...
(3) The Crown, when it is the party to be examined, shall select a knowledgeable officer, servant or employee, nominated by the Deputy Attorney General of Canada, to be examined on behalf of that party, but if the examining party is not satisfied with that person, the examining party may apply to the Court to name some other person.
...
[2] The grounds for the motion are first that the Respondent's nominee for examination for discovery, namely Zahur Jiwa, the auditor, was unable to provide substantive answers to questions by the Appellant's counsel; second, that he did not make reasonable inquiries regarding the matters in issue; and third, that he was not a knowledgeable officer of the Respondent in respect of the matters in issue.
[3] The Appellant also alleged that Respondent's counsel stated her intention to move to strike out paragraph 13 of the Amended Notice of Appeal. Paragraph 13 reads:
13. Was the evidence relied on by the Minister improperly obtained as a result of an unlawful search and seizure? If so, was this in violation of the Appellant's rights under section 8 of the Canadian Charter of Rights and Freedoms (the "Charter")?
[4] In support of the motion, the Appellant filed the Affidavit of Sabina Mexis. The Respondent filed the Affidavit of Anna del Mundo.
[5] This appeal was scheduled for hearing in Torontoon September 13, 2006, to last for three days. Appellant's counsel then filed a Notice of Motion on August 31, 2006. That motion was granted and proceedings were ordered, including further examinations, to be completed not later than November 27, 2006. Subsequently, Appellant's counsel proposed examinations for discovery to occur on November 27, 2006, which Respondent's counsel agreed to. These were postponed at Appellant's counsel's request and occurred on November 30, 2006. In other words, they were done later than at the last minute.
[6] After that, Appellant's counsel brought this motion. Trial is scheduled to occur on January 8, 2006.
[7] On October 20, 2006, Appellant's counsel asked to examine Tom Cooper for discovery. Respondent's counsel refused and Mr. Jiwa, the auditor on the file, was put forward by the Respondent for the examination. Mr. Jiwa was examined by Appellant's counsel on November 30, 2006, pursuant to Appellant's counsel's Notice to Attend.
[8] The transcript of the discovery of November 30th of Mr. Jiwa shows that Mr. Jiwa gave substantive answers to the counsel's questions, that he gave undertakings where he could not answer immediately, and that he was knowledgeable respecting the matters in issue. Mr. Jiwa was the assessing auditor.
[9] Appellant's counsel asked a series of questions about the acknowledged fact that this assessment process arose as a result of police information given to Mr. Cooper, a Canada Revenue Agency officer in charge of police liaisons. Mr. Jiwa agreed to forward to the Appellant's counsel "the original document about the exchange program" between the police and Canada Revenue Agency, at counsel's request.
[10] But, referring to Appellant's Notice of Motion, the transcript of the examination for discovery does not reveal any failure by Mr. Jiwa such as is alleged in any of the three aspects recited in paragraph [2] of these Reasons.
[11] The motion is dismissed. Costs are in the cause.
Signed at Saskatoon, Saskatchewan, this 21st day of December, 2006.
"D.W. Beaubier"
COURT FILE NO.: 2003-3899(IT)G
STYLE OF CAUSE: Milos Markovic v. The Queen
DATE OF HEARING: December 21, 2006
REASONS FOR ORDER BY: The Honourable Justice D.W. Beaubier
DATE OF ORDER: December 21, 2006
APPEARANCES:
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Counsel for the Appellant: |
David Chodikoff and Ryan Lay |
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Counsel for the Respondent: |
Jenny Mboutsiadis |
COUNSEL OF RECORD:
Ryan Lay
Firm: Goodman and Carr LLP
For the Respondent: John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Canada