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Dockets: 2004-2787(IT)G |
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91-1946(IT)G |
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91-509(IT)G & 91-1816(IT)G |
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BETWEEN: |
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ALLAN GARBER GEOFFREY D. BELCHETZ LINDA LECKIE MOREL, |
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Appellants, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
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Motion heard on September 16, 2005 at Toronto, Ontario.
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Before: The Honourable D.G.H. Bowman, Chief Justice |
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Appearances: |
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Counsel for the Appellants: |
David M. Goodman |
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Counsel for the Respondent: |
John R. Shipley Rosemary Fincham |
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ORDER
Upon motion made by the appellants for an order striking out the reply or alternatively that the appeals be allowed and the assessments be vacated pursuant to subsection 171(1) of the Income Tax Act;
It is ordered that the motion be dismissed.
There will be no order for costs at this time; the disposition of the costs of this motion will be left to the discretion of the trial judge.
Signed at Ottawa, Canada, this 5th day of October 2005.
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"D.G.H. Bowman" |
Bowman, C.J.
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Citation: 2005TCC635 |
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Date: 20051005 |
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Dockets: 2004-2787(IT)G |
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91-1946(IT)G |
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91-509(IT)G & 91-1816(IT)G |
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BETWEEN: |
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ALLAN GARBER GEOFFREY D. BELCHETZ LINDA LECKIE MOREL, |
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Appellants, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
REASONS FOR ORDER
Bowman, C.J.
[1] This motion is for an order striking out the reply in each of the three appeals and permitting the appeals to proceed on an uncontested basis. The notice of motion was amended to add a request that the appeals be allowed and that the assessments be vacated pursuant to subsection 171(1) of the Income Tax Act. The amended notice of motion also asked for costs on a "substantial indemnity basis" and further and other relief.
[2] The grounds for the motion are:
1. The Court has the inherent jurisdiction to prevent an abuse of its process.
2. Embedded in the Court process, and integral to it, is the settlement process, and as particularly embodied in the case management of the Court.
3. In administering the Income Tax Act, the Minister of National Revenue derives all his power for making decisions and taking actions solely from the provisions and the original intent of the Act.
4. The Respondent has abused the settlement process, and thereby the process of the Court, by acting illegally outside the statutory power conferred upon him by the Income Tax Act.
5. The Respondent has abused the process of the Court by causing prejudice and undue delay to the disposition of the appeals.
6. An abuse of process can, in appropriate circumstances, lead to the stay of proceedings.
[3] The amended notice of motion states the same grounds except that in paragraph 2 the words "and as particularly embodied in the case management of the Court" have been deleted.
[4] The pre-trial procedural aspects of this case have taken on a life of their own. Previous motions were heard by Justice Hamlyn and Justice Bowie and finally we have this motion.
[5] The record up to now comprises numerous affidavits and a multitude of exhibits and lengthy cross-examinations on affidavits. In all, there are thousands of pages of documents and transcripts contained in dozens of thick books. The appellants' motion briefs comprise three books, plus three more supplementary motion briefs. The appellants' factum is 101 pages in length and the respondent's is 73. The appeals have been before the Court since September 1991. In that period counsel for the parties have appeared, disappeared and reappeared.
[6] I shall endeavour not to add to the proliferation of documentation and verbiage that has turned this case into a modern day Jarndyce andJarndyce, but simply state in what I hope will be fairly simple and comprehensible prose a brief outline of what happened and how we got to where we are today. The facts that I am reciting are taken from the voluminous material. It is necessary for the purposes of my disposition of this motion that I state a factual framework against which the legal conclusions are to be delineated. I do not, however, intend to make factual determinations that would bind a trial judge if the cases come to a hearing. Words such as "business", "scheme" or "arrangement" for example are used neutrally. Since the basic premise of the assessing action taken was that the yacht chartering business was not a business, I will leave it to whoever hears the evidence at trial to make that determination.
[7] Back in the 1980s about 600 taxpayers invested in a number of limited partnerships whose stated purpose was to run a group of yacht chartering businesses. The operator of the business of the limited partnerships was Overseas Credit and Guarantee Corporation ("OCGC") which was run by Einar Belfield and Osvalo Minchella.
[8] The partnerships reported losses from the activity and the taxpayers claimed substantial losses from their investment in the limited partnerships. The losses were denied by the Minister of National Revenue. Objections were filed, the assessments were confirmed and the appeals (of which these three are before the Court on this motion) ensued. Of the original approximately 600 appeals, about 175 remain outstanding, the others having been settled.
[9] In December 1994 and January 1995 an indictment was issued against Belfield and Minchella. There were two counts of fraud contrary to paragraph 380(1)(a) of the Criminal Code and two of forgery contrary to subsection 368(1) of the Criminal Code. The first count was that they had defrauded Her Majesty of about $110,000,000 by making false claims of losses on behalf of 36 limited partnerships. The fact that the losses were denied by the Minister of National Revenue and that Her Majesty did not in fact lose anything seems not to have deterred the prosecution. That no loss to Her Majesty occurred seems to be irrelevant in light of Reginav. Olan, Hudsonand Hartnett, [1978] 2 S.C.R., 1175; 41 C.C.C. (2d) 145 at 150-151, (S.C.C.). All that is required is, evidently, a risk of loss. The second count was that they defrauded the investors of the cash deposits, the value of the promissory notes and the interest they paid. The investors (the alleged victims) were neither witnesses nor parties in the criminal proceedings and, at least in the material before me, never asserted that they were defrauded. The merits of the assessments have never been litigated or determined in this Court. Since the criminal prosecution proceeded before a jury it is impossible to know what the jury may have thought about the correctness of the assessments, if they thought about the matter at all. Only one thing is certain: the jury certainly thought Messrs. Belfield and Minchella were sufficiently bad actors to warrant their being convicted of serious fraud. Belfield and Minchella were convicted and appeals from the convictions were unsuccessful. I understand they are now in jail.
[10] We have, then, appeals that were started in September 1991 from assessments involving the yacht chartering limited partnerships and prosecutions started in 1994 and 1995 involving the promoters of the same arrangements in which it was alleged that the arrangements were fraudulent. Settlement negotiations started to be conducted in the civil appeals in 1991. The premise of the civil assessments was that there was no business being carried on and that there was no reasonable expectation of profit. In addition the respondent pleaded that the expenses claimed were not incurred and were in any event unreasonable. Those days represented the heyday of REOP and we had to wait almost a decade before the Supreme Court of Canada gave the quietus to this dubious doctrine and, it is hoped, gave it a permanent, albeit long overdue, burial.
[11] A settlement was in fact reached in 1994. A meeting was held with lawyers from the law firm Shibley Righton, who represented the investors, members of the Department of Justice and the Department of National Revenue. On December 20, 1991, a memorandum was prepared by the members of the Department of National Revenue who attended the meeting. It discussed the settlement negotiations and concluded with the observation:
We will investigate new information provided by the representative, i.e. Gable has a boat, some marketing and chartering actually took place, OCGC demanded payment of debt and interest and investors lost right to exercise resell option.
We should obtain a copy of the prospectus to determine the maximum cash risk expected by the investors. This information should assist us in the negotiation of allowable deductions over and above the interest payment and the professional fees.
We will ascertain the nature and status of the CCA and professional fees claimed and will consider the appropriate action. However, no CCA should be allowed as the capital cost was not properly substantiated.
We should not accept any partnership loss as it would legitimize the scam. Also, their contention that the losses only achieve a tax deferral is misleading at best. They are saying that any losses allowed would grind down the ACB of the partnership interest and a partnership interest with a negative ACB on disposition will be brought back into income. While there is a deferral as they say, there is also a tax differential as the losses are an income deduction whereas the negative ACB would result a capital gain (75%) on disposition and the effective tax rate for an individual in the higher tax bracket is generally lower in 1992 than in the mid 1980's.
N.B. Mr. D'Avignon advised that he indicated to Steve Dover of the Minister's Office that we may be able to do something with the interest accumulated in order to settle this matter.
[12] On February 26, 1992, Shibley Righton wrote to the Department of National Revenue with copies to the Department of Justice. The letter proposed a settlement of the outstanding appeals. The memoranda attached to the letter were detailed and specific.
[13] Following that letter a series of letters ensued in which further proposals of settlement were made and rejected and counter proposals made. For example, on July 15, 1993, Shibley Righton wrote to the Department of National Revenue with a further proposal and on July 21, 1993, Wayne Lynn of Department of National Revenue wrote back suggesting a number of changes. On July 29, 1993, Shibley Righton replied with a further proposal. On August 31, 1993, Wayne Lynn suggested further changes and on September 13, 1993, Shibley Righton wrote back with a further modified proposal.
[14] On September 15, Wayne Lynn replied to Shibley Righton as follows:
We are writing in reply to your letter of September 13, 1993 in the above noted matter. We wish to advise that we agree in principle with the terms of the settlement proposal outlined in your letter and suggest that you present the proposal to the OCGC investors as soon as possible. You will appreciate that the purpose of any settlement is to avoid litigation and the uncertainties thereof, and, as advised, a Tax Court hearing for one of the investors may be imminent.
If all or a substantial number of investors accept the proposal, it will then be necessary to prepare the relevant documents in accordance with the terms of the settlement proposal outlined in your letter and have them agreed to by our Justice counsel.
We trust that you will find the above to be satisfactory.
[15] On November 26, 1993, Martin L. O'Brien of Shibley Righton wrote to the investors recommending the settlement. On December 7, 1993, he sent Wayne Lynn an edited copy of the letter sent to the investors. After meeting with the investors, Shibley Righton wrote to R.M. Beith, Assistant Deputy Minister of Appeals suggesting a further modification of the proposal, specifically to extend the interest abatement period for a further year.
[16] On February 10, 1994, Mr. Beith wrote back as follows:
I am replying to your letter dated January 26, 1994 concerning the above subject.
I have reviewed your letter and the circumstances with respect to these cases as well as the settlement proposal. As you are aware the proposal was tentatively agreed to after much consideration, negotiation and compromise by both sides. From our point of view, the concessions made by the Department are more than fair and generous. In the circumstances I have to inform you that I do not see any basis for a further extension of the interest abatement period.
Concerning the instalment interest issue, I disagree that the settlement proposal does not address that issue. The Department was aware the proposal could have an impact on instalment requirements, and, as part of the settlement, it was agreed that no accommodation would be made in this area. This is set out in your letter to the Department dated September 13, 1993 at the last sentence of the first paragraph on page 4. Again, I have to inform you I do not see any reason to justify concessions in this area.
In the event a significant number of investors do not find it expedient to agree to the terms of the proposal as negotiated, there appears to be no alternative but to proceed in the normal way. On the other hand the Department would agree to extend the time limit for disposition of the partnership interest to the 1994 calendar year.
I would appreciate your final response to the settlement proposal at your early convenience.
[17] On May 24, 1994, Shibley Righton wrote to Mr. Lynn in part as follows:
We wish to provide you with a final update of the responses by the taxpayers to the settlement proposal (the "Proposal") negotiated with Revenue Canada, Taxation (the "Department"). We are currently representing 441 taxpayers. The breakdown of the responses received from the taxpayers is as follows:
(a) 356 taxpayers have accepted the Proposal;
(b) 39 taxpayers have rejected the Proposal; and
(c) 46 taxpayers have not replied to the Proposal.
In your letter dated September 15, 1993 you indicated that the Department will require that all or a substantial number of the taxpayers accept the Proposal before it can be implemented. Please confirm whether a sufficient number of the taxpayers have accepted the Proposal so that its implementation may proceed. If it is the Department's view that the number of acceptances are insufficient, we are confident that if the Department was prepared to agree to amend the Proposal to provide for an additional year of interest abatement or to extend the abatement to September 25, 1990, we would be able to secure the approval of the majority of those taxpayers who have not accepted the Proposal.
[18] On June 7, 1994, Mr. Lynn wrote back:
Thank you for your letter of May 24, 1994. We wish to advise you that the Department will proceed with the implementation of the settlement proposal (the "Proposal") as agreed in our letter of September 15, 1993.
The Proposal will be available for acceptance on or before 4:00 p.m. EDT, October 21, 1994. The acceptance of the Proposal shall be evidenced by the original of the executed Minutes of Settlement.
We trust that the above confirmation will meet with your approval. With respect to the other issues raised in your letter of May 24, 1994, we will provide you with a written reply in due course.
[19] On June 17, 1994, Mr. Lynn wrote again dealing with a number of subsidiary issues and on July 29, 1994, Martin O'Brien sent the Department of Justice draft Minutes of Settlement.
[20] On October 19, 1994, Mr. Belchetz, one of the appellants in this motion, changed his solicitors from Shibley Righton to Perley-Robertson, Panet, Hill & McDougall.
[21] In my view there was a concluded agreement between the Department of National Revenue and the investors who accepted the deal. Nonetheless, on November 18, 1994 the Senior General Counsel, Tax Litigation Section, Department of Justice wrote to Shibley Righton as follows:
I refer to previous discussions and correspondence between your firm and Revenue Canada regarding the possible civil settlement of objections filed by a number of "investors" which your firm represents.
I regret to advise that a settlement on the basis of discussions to date and the proposal as referred to in the letter from Wayne Lynn dated June 7, 1994 to Mr. O'Brien cannot be continued or concluded. We take the position that a settlement has not been finalized at this time and that any offers to settle are now withdrawn.
It is the position of Revenue that there is no underlying factual basis for the proposed civil settlement. As you are aware, the Minister has a statutory duty to assess the amount of tax payable on the facts as he finds them and any agreement to assess otherwise than in accordance with the law would be inappropriate and indeed illegal. I refer in particular to Cohen 80 DTC 6250 in this regard.
Please advise if you wish to discuss this matter further.
[22] On January 6, 1995, Michael Birley of Shibley Righton wrote back to him in an attempt to persuade him to reconsider his position. The Department of Justice's reply on March 15, 1995, was as follows:
Thank you for your letter of January 6, 1995.
As you are aware, E. Belfield and O. Minchella have been charged in respect of their activities relating to the O.C.G.C. matters. I referred your letter to Mr. Hubbard, the prosecutor in Justice responsible for this matter and, by letter dated January 31, 1995, Ms. Sharon Reynolds of his office advised in essence that the facts set out in your letter do not accord with the facts understood by the Department of Justice or Revenue Canada. Simply put, it is the view of Justice and Revenue that no partnerships existed or if they did exist, that no business of yacht chartering was carried on thereby.
I recently spoke with George Corn of your office who asked whether a settlement was possible in respect of taxpayers represented by his firm. The position of the Crown is that no settlement is possible that runs contrary to our understanding of the facts.
I will be pleased to discuss this matter further if you desire.
[23] In my view there was nothing illegal in the settlement reached between Shibley Righton on behalf of the investors and Wayne Lynn on behalf of the Department of National Revenue. The Department of Justice counsel undoubtedly believed that on the basis of the decision of Pratte J. in Cohen v. The Queen, 80 DTC 6250, he was entitled to repudiate the settlement agreed to by the Department of National Revenue at the level of Assistant Deputy Minister. Although I am bound by the Cohen decision (Consoltex v. The Queen, 97 DTC 724) if it is taken as meaning that the Crown (and therefore the taxpayer) is never bound by any agreement to settle a case, whether legal or illegal, it runs counter to fundamental precepts of commercial morality. Here a carefully constructed settlement that is not contrary to the law and that took over two years of intense negotiation to conclude is, with a snap of the fingers, nullified. If it is the law that the Crown should never enter into agreements to settle tax litigation and that if it does it can renege on all settlements so that all tax disputes must be litigated in this Court, the system breaks down. Far more tax disputes are settled at the pre-assessment, objection and appeal level than are ever litigated.
[24] It is not, however, by any means clear to me that Cohen is the last word on the subject of the Minister's ability to refuse to honour agreements that his officials have made. In The Queen v. Enterac Property Corporation, 98 DTC 6202, the Crown had been unsuccessful in the Tax Court of Canada in its attempt to strike from a taxpayer's notice of appeal allegations of a binding agreement made with the Minister about how he would assess. On appeal to the Federal Court of Appeal, McDonald J.A. speaking for the Court said:
We have not been persuaded that the motions Judge made any error which would warrant the intervention of this Court. It is not plain and obvious to us that the alleged agreement is irrelevant to the issues which must be resolved. Should it be determined on the evidence that the alleged agreement was within the power of the Minister to make, and providing its agent was acting within the scope of his or her authority and in accordance with the law, the Minister might be bound by the agreement.
We are all of the view that whether the Minister is bound by the agreement or indeed the existence of an agreement are matters that are best left to a Judge at a trial and not on a motion to strike under Rule 53. We are also of the view that Rule 58 does not apply.
By proceeding to trial this would also give counsel an opportunity to ask the Court to revisit the jurisprudence in Nathan Cohen, et al. v. Her Majesty the Queen, 80 DTC 6250 (F.C.A.), David Ludmer, et al. v. Her Majesty the Queen, 95 DTC 5311 (F.C.A.) leave to appeal refused, [1995] 4 S.C.R. vii, in light of the comments of Judge Bowman in Consoltex Inc. v. The Queen, [1980] C.T.C. 318, (F.C.A.)[1] and the statement of Chief Justice Laskin in Smerchanski and Eco Exploration Co. Ltd. v. Minister of National Revenue, 76 DTC 6247 (S.C.C.).
The appeal is dismissed with costs.
[25] I agree with Mr. Goodman that the only conclusion that can reasonably be reached is that the civil settlement that was reached was repudiated because it was thought by the prosecutors that to do so would jeopardize the criminal proceedings against Belfield and Minchella. Thus one might question whether the investors were doubly victimized - once, on the Crown's theory in the prosecution, by Belfield and Minchella in inducing them to get into the scheme and taking their money and a second time, by the prosecutors who, in the interests of getting a conviction, prevented the investors from carrying through with a perfectly proper and reasonable settlement.
[26] Despite seeing their settlement fall apart Shibley Righton continued to try to settle the cases. On August 29, 1995, George Corn wrote to the Department of Justice as follows:
The writer has attempted on a couple of occasions to contact you by telephone to discuss the viability of pursuing further settlement discussions referrable to the OCGC Limited Partnership reassessments.
On behalf of the investors, we have the following three alternatives which we have, in a previous telephone discussion, briefly discussed, namely:
1. pursue our appeal rights in the Tax Court of Canada;
2. commence an action against Revenue Canada, Taxation to enforce the settlement negotiated on behalf of all of the investors; and
3. agree on a new settlement which would incorporate the economic benefits to the taxpayer of the previous settlement negotiated while accommodating the position that Revenue Canada, Taxation cannot enter into a settlement wherein it recognizes for settlement purposes facts contrary to the position being taken in the prosecution of the promoters Einar Belfield and Osvaldo Minchella.
With respect to the latter, please advise if you are prepared to consider for the 1985 and subsequent limited partnerships the extension of the fairness package to provide a relief for interest beyond that as originally proposed to January 1, 1990 to and including the date upon which you formerly advised our office that the settlement as negotiated with Revenue Canada, Taxation is being withdrawn.
We would be prepared to recommend this as a settlement to the investors in the 1985 and subsequent limited partnerships.
In view of the fact that the fairness package cannot apply to the 1984 limited partnerships perhaps we could structure a settlement along similar lines for the 1984 limited partnership investors by having them institute an action against Revenue Canada, Taxation to enforce the settlement in civil proceedings and thereafter the resolution of those civil proceedings could be effected on the basis whereby similar economic relief is provided or perhaps an application under the Financial Administration Act could be made.
I would appreciate hearing from you as soon as possible on this matter as we had met with the investors in the spring and we are anxious to advise investors as to any prospective settlement.
[27] In 1996 the Amalgamated OCSG Investors Group became involved. The level of recriminations, accusations and, generally, the rhetoric, increased in intensity. Letters were sent to the Prime Minister.
[28] On March 4, 1996, however Mr. Roger Taylor of the Department of Justice made a new offer of settlement and on May 15, 1996, the Department of National Revenue wrote to all of the OCGC participants with a new offer of settlement. I understand that a large number of participants have accepted the new offer.
[29] By the end of 1996 a substantial number of the appeals had been settled. Since then the remaining appeals have languished. There have been changes of counsel and more procedural manoeuvring. A motion was brought before Justice Hamlyn having to do with the late filing of replies and alleging abuse of process. Justice Hamlyn dismissed the motion and held that the delays were consensual. More recently Justice Bowie heard a motion for an order that Mr. Howard Winkler of Aird & Berlis could continue to represent the taxpayer.
[30] The question that I must now decide is whether on the basis of the facts as disclosed in the material which are summarized above, the appellants are entitled to the relief sought by them, either that the replies be struck out and the appeals proceed on an uncontested basis or that the assessments be vacated.
[31] The cornerstone of Mr. Goodman's argument is that once an appeal is filed in this Court the Court has an inherent jurisdiction to control its own processes. I agree. The Court unquestionably has an inherent jurisdiction to control its own processes and to prevent an abuse of its own processes. As a general proposition the statement is incontrovertible.
[32] Counsel for the appellants seeks to extend this Court's jurisdiction to the settlement process. Here, the extent of the Court's powers become somewhat more problematical. The Tax Court of Canada Rules (General Procedure) provide for pre-trial conferences in which a judge will meet with the parties and their counsel and explore the possibility of settlement. Settlement of cases is encouraged and, if a settlement is reached, it can be implemented by the Court. The Court can order that the parties attend a pre-trial conference and the failure of one of the parties to attend carries with it sanctions that may range from an award of costs to the extreme sanction of allowing or dismissing an appeal. What the Court cannot do, however, is force the parties to settle or force one party to accept a settlement proposed by the other party or, for that matter, suggested by the judge. Pre-trial conferences are not like labour negotiations where a failure to bargain in good faith may be visited with sanctions.
[33] Where the settlement negotiations take place outside of the context of a pre-trial conference (as was the case here) there is no power that this Court has to enforce parties to act reasonably or to bargain in good faith. A party can approach the settlement negotiations in a contrary, perverse and downright cantankerous frame of mind or can refuse altogether to negotiate, and there is really nothing this Court can do about it, except, perhaps, after the case has been heard, to take into consideration in awarding costs under section 147 of the Rules an offer of settlement made by one of the parties.
[34] What have we here? A detailed and complex settlement that was worked out over two years and that is accepted by the Department of National Revenue and that is abruptly repudiated by the Department of Justice. The inescapable inference that must be drawn is that the repudiation of the settlement accepted by the Department of National Revenue was motivated by the consideration that such a settlement might jeopardize the chances of getting or upholding a conviction against Belfield and Minchella. Had there been no prosecution there is very little doubt in my mind that the settlement would have been implemented.
[35] Counsel for the appellants argues that the Minister of National Revenue abused the settlement process in that he repudiated the settlement by taking in account a factor that was extraneous to the Income Tax Act, specifically, the prosecution under the Criminal Code. I agree that on the facts that is what seems to have happened, except that it appears to have been the Department of Justice, not the Department of National Revenue, who pulled the rug out from under the settlement. I have seen no evidence that the Department of National Revenue instigated, concurred in or was even consulted about the repudiation of the agreement. I am reluctant to subscribe to the expression "abused the settlement process" partly because I am not quite sure what it means.
[36] I think it was within the authority of the Department of Justice to repudiate the agreement. It was an agreement made within the context of Crown litigation and was therefore clearly within the ambit of the responsibility conferred on the Attorney General under paragraph 5(d) of the Department of Justice Act which accords to him the conduct and regulation of all Crown litigation. Department of Justice lawyers sometimes refer to the Department of National Revenue as their "client". This is a convenient shorthand turn of phrase but it is not entirely accurate, even though the relationship between the Attorney General and the various government departments in whose interests the Department of Justice acts may have some incidents that are analogous to a solicitor-client relationship.
[37] At all events, the Department of Justice had the authority to repudiate the agreement. Whether it ought to have is a very different matter. If Cohen is right that the Crown can dishonour all agreements that it makes then there are no limits on the sort of extraneous considerations that the Crown can take into account when it decides to renege on an agreement.
[38] Mr. Goodman says that the Minister of National Revenue has abused the settlement process and thereby the process of the Court
"by acting illegally outside the statutory power conferred upon him under the Income Tax Act".
[39] With respect, whatever I may think about the Crown's behaviour in repudiating the agreement, it was legally, if not morally, entitled to do so and there is no sanction that this Court can impose. If the appellants wanted to have the validity of the settlement tested in Court they might have moved for judgment on the basis of the agreement or they might have brought an action in the Federal Court for some type of appropriate remedy. I am not deciding what they could have done. The fact is they seem to have accepted the Department of Justice's repudiation of the agreement and gone back to the bargaining table.
[40] The appellants also allege delays occasioned by the Crown. I think the responsibility for the delays - and there certainly have been delays - can be laid more or less equally on the doorsteps of both parties. This is consistent I think with the conclusion of Hamlyn J. in the previous motion. I might say that if the appellants are anxious to get their cases on for trial this Court is one of the most accommodating in assisting litigants to accelerate the hearing of their appeals.
[41] I must dismiss the motion because there is nothing about the Crown's behaviour that is shown in the record that would, under the Rules or under the Court's inherent jurisdiction, permit or require the striking out of the replies or the vacating of the assessments.
[42] Both the Crown and the appellants ask for substantial costs on the basis of alleged misconduct by the other side. I do not think that either the appellants or the respondent should be too quick about casting the first stone. I make no order for costs at this time. There has been a great deal of bad blood and acrimony between the Crown and the appellants. It persisted right up to the hearing of the motion. One need only read the briefs to be struck by the palpable animosity that practically leaps off the pages. If I order costs at this point, whether increased or normal, against either party it will be in the context of a bellicose and confrontational atmosphere and will only add fuel to the fire. If the cases go to trial the trial judge can probably make a more informed determination of the costs in the overall disposition of the case. If the cases are settled the costs can be dealt with as part of the overall resolution.
[43] The Crown brought a cross-motion having to do with setting dates for the further steps in these appeals. Counsel should communicate with the Court to arrange a conference call to deal with these matters. A pre-trial conference will be scheduled before another judge. May I express the hope that the parties will approach the question of settlement with an attitude of dispassionate serenity that has not heretofore always been evident.
Signed at Ottawa, Canada, this 5th day of October 2005.
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"D.G.H. Bowman" |
Bowman, C.J.
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CITATION: |
2005TCC635 |
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COURT FILES NOS.: |
2004-2787(IT)G 91-1946(IT)G 91-509(IT)G & 91-1816(IT)G |
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STYLE OF CAUSE: |
Allan Garber Geoffrey Belchetz Linda Leckie-Morel and Her Majesty The Queen |
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PLACE OF HEARING: |
Toronto, Ontario |
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DATE OF HEARING: |
September 16, 2005 |
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REASONS FOR ORDER BY: |
The Honourable D.G.H. Bowman Chief Justice |
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DATE OF ORDER AND REASONS FOR ORDER: |
October 5, 2005 |
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APPEARANCES: |
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Counsel for the Appellant: |
David M. Goodman |
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Counsel for the Respondent: |
John R. Shipley Rosemary Fincham |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
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Firm: |
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For the Respondent: |
John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Canada |