Date: 20030505
Docket: A-53-03
A-62-03
Neutral citation: 2003 FCA 205
Present: SHARLOW J.A.
BETWEEN:
DAVID M. SOSIAK
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario on May 5, 2003.
REASONS FOR ORDER BY: SHARLOW J.A.
Date: 20030505
Docket: A-53-03
A-62-03
Neutral citation: 2003 FCA 205
Present: SHARLOW J.A.
BETWEEN:
DAVID M. SOSIAK
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
[1] I have before me a number of motions by the applicant in these two matters, which have been ordered to be heard together. The motions are opposed by the respondent. To understand the issues it is necessary to consider the history of this case in some detail.
[2] The applicant filed notices of appeal in the Tax Court, under the informal procedure, for 1996, 1997, 1998 and 1999 (Tax Court File 2002-511(IT)I). He then caused subpoenas to be issued to a number of individuals, including an Ontario judge, the Prime Minister and federal cabinet ministers. The Crown and two of the persons subpoenaed made a motion in the Tax Court to have all of the subpoenas quashed. The Crown also moved for an order prohibiting the applicant from issuing any more subpoenas without leave of the Tax Court. At the same time, the Crown sought an order quashing the appeals for 1996, 1997 and 1998 on the basis that there can be no appeal from a notification that no tax is payable.
[3] The motion was heard by conference call on January 10, 2003. The Tax Court Judge granted the orders sought by the Crown and the two individuals. On January 21, 2003, the applicant filed a notice of application for judicial review of that order (A-53-03).
[4] The applicant's 1999 income tax appeal was set down for hearing in the Tax Court on January 28, 2003. The applicant requested an adjournment pending the disposition of the judicial review application, but his request was denied. The hearing proceeded and resulted in a judgment rendered orally on January 28, 2003 dismissing his appeal. The judgment was signed on February 5, 2003. On January 30, 2003, the applicant commenced an application for judicial review of that decision (A-62-03).
[5] The applicant included in his first notice of application for judicial review (A-53-03) a request to the Tax Court to provide certified copies of the following material to him and to this Court:
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(1) All edited and unedited, Audio-Tape Recordings, made during the conference call (hearing) conducted by Judge Bell, in Ottawa, Friday, January 10, 2003. |
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(2) A copy of Judge Bell's personal notes, orders, directions made during the hearing or shortly after this matter was heard. |
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(3) A copy of all documents, letters, materials issued by the Tax Court and sent to the applicant. |
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(4) A copy of all documents, letters materials sent to the Tax Court by the applicant. |
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(5) The date and time, Mr. Sosiak's submission, with letters and Exhibit's addressed for Judge Bell, for review by him, prior to our Conference Call, Friday, January 10, 2003 shipped by "Purolator", January 08, 2003 bearing "Bill of Landing number 20237538176", was received by the Tax Court and Judge Bell. |
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(6) Any other documents, materials, not mentioned here, which would assist this Court, in making a final determination. |
[6] In his second notice of application for judicial review (A-62-03), the applicant requested the Tax Court to provide certified copies of the following material to him and this Court:
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(1) All edited, unedited, audio tape recordings, made during Mr. Sosiak's hearing, of the Tax Court of Canada, in St. Catherine's, ON, on Tuesday, January 28, 2003,at 9.30 am. |
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(2) A complete record and transcript of Mr.Sosiak's hearing, of the Tax Court of Canada, in St. Catharine's ON, at 9:30 am. Please note, the hearing started at approximately 09.45 hrs |
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(3) A complete copy of Judge Bell's personal notes, orders, directions and decisions made during the hearing. Please note, his decision was rendered, directly, from the bench. |
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(4) A copy of the Affidavits, Documents, materials provided as evidence to the Court, by Ms. Carole Benoit, Counsel, Department of Justice, Tax Litigation. |
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(5) Any other documents, materials, not mentioned here, which would assist this Court, in making a final determination. |
[7] The statutory authority for these requests is Rule 317 of the Federal Court Rules, 1998, which reads as follows:
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317 (1) A party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party by serving on the tribunal and filing a written request, identifying the material requested. |
317 (1) Une partie peut demander que des documents ou éléments matériels pertinents à la demande qui sont en la possession de l'office fédéral don't l'ordonnance fait l'objet de la demande lui soient transmis en signifiant à l'office fédéral et en déposant une demande de transmission de documents qui indique de façon précise les documents ou éléments matériels demandés. |
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317 (2) An applicant may include a request under subsection (1) in its notice of application. |
317 (2) Un demandeur peut inclure sa demande de transmission de documents dans son avis de demande. |
[8] The obligation of the Tax Court upon receiving this request is set out in Rule 318, which reads as follows:
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318 (1) Within 20 days after service of a request under rule 317, the tribunal shall transmit
(a) a certified copy of the requested material to the Registry and to the party making the request; or (b) where the material cannot be reproduced, the original material to the Registry. |
318 (1) Dans les 20 jours suivant la signification de la demande de transmission visée à la règle 317, l'office fédéral transmet : a ) au greffe et à la partie qui en a fait la demande une copie certifiée conforme des documents en cause; b ) au greffe les documents qui ne se prêtent pas à la reproduction et les éléments matériels en cause. |
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318 (2) Where a tribunal or party objects to a request under rule 317, the tribunal or the party shall inform all parties and the Administrator, in writing, of the reasons for the objection. |
318 (2) Si l'office fédéral ou une partie s'opposent à la demande de transmission, ils informent par écrit toutes les parties et l'administrateur des motifs de leur opposition. |
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318 (3) The Court may give directions to the parties and to a tribunal as to the procedure for making submissions with respect to an objection under subsection (2). |
318 (3) La Cour peut donner aux parties et à l'office fédéral des directives sur la façon de procéder pour présenter des observations au sujet d'une opposition à la demande de transmission. |
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318 (4) The Court may, after hearing submissions with respect to an objection under subsection (2), order that a certified copy, or the original, of all or part of the material requested be forwarded to the Registry. |
318 (4) La Cour peut, après avoir entendu les observations sur l'opposition, ordonner qu'une copie certifiée conforme ou l'original des documents ou que les éléments matériels soient transmis, en totalité ou en partie, au greffe. |
[9] In response to the request in the first notice of application for judicial review (A-53-03), the Tax Court sent a letter dated February 10, 2003 to the applicant and this Court with certified copies of the order dated January 10, 2003 and a January 22, 2003 amendment, and a copy of the reasons for the decision. The letter also advised the applicant as follows: (1) the audio-tapes are not in its possession, but the name and address of the Court reporter was provided; (2) the Judge's notes are not part of the court record and are either non-existent or unavailable; (3) the Tax Court issued no written directions during the hearing; (4) his submissions and exhibits were received by the Tax Court on January 10, 2003 between 11:30 a.m. and noon. The hearing of the motion had begun at 10:00 a.m. on that day. As to the remaining requests, the Tax Court indicated that the material was not sufficiently identified to enable a response.
[10] In response to the request in the second notice of application for judicial review (A-62-03), the Tax Court sent a letter dated February 11, 2003 to the applicant and this Court with a certified copy of the judgment. The letter advised the applicant as follows: (1) the audio-tapes and transcripts are not in its possession, but the name and address of the Court reporter was provided; (2) the Judge's notes are not part of the court record and are either non-existent or unavailable; (3) the Transcript of Oral Reasons for Judgment had been ordered and would be issued to the parties as soon as possible, (4) no affidavits, documents or materials were submitted as evidence at the hearing. To substantiate that last point, the Tax Court provided a copy of the Registrar's minutes. As to the remaining requests, the Tax Court indicated that the material was not sufficiently identified to enable a response.
[11] The applicant filed an affidavit in A-53-03 on February 18, 2003, and an affidavit in A-62-03 on February 27, 2003. On March 27, 2003, the applicant sent a letter to the Court alleging that the respondent has refused to provide him and the Registrar with information and material requested of them. Attached to the letter are copies of letters that have passed between him and counsel for the respondent. The applicant alleges a deliberate attempt on the part of the respondent to frustrate and harass the applicant and obstruct this Court. He alleges that his affidavits are lacking and incomplete because of the approach taken by the Respondent. On April 4, 2004, Sexton J.A. issued a direction that the applicant file a notice of motion if he requires more time to complete his record.
[12] The applicant has now filed a notice a motion, requesting various kinds of relief. The respondent has opposed each of his motions. Before dealing with those motions, some preliminary comments are in order.
[13] It appears that the applicant misunderstands the nature of an application for judicial review, which may have led him to misunderstand the obligations of a respondent in an application for judicial review.
[14] An application for judicial review is not a trial. The task of a reviewing court is to determine whether the tribunal erred in deciding as it did, based on the documents the tribunal was given and the oral evidence it heard, and if such an error is found, to determine whether the nature of the error is such as to warrant the intervention of the court.
[15] In reviewing a tribunal's decision, the reviewing court generally will take into account only the evidence that was before the tribunal. Rules 317 and 318 (referred to above) are designed to ensure that an applicant has access to evidence that was presented to a tribunal, if the applicant is not already in possession of that evidence.
[16] Exceptions may be made to this general rule, however. For example, an applicant who alleges that the decision maker failed to conduct a fair hearing may submit an affidavit setting out the factual basis of that allegation. Such an affidavit necessarily will be evidence that was not before the tribunal, but that is permitted because in most cases there is no other method by which the reviewing court can be apprised of facts relating to an allegation of a procedural failure.
[17] Generally, the respondent in an application for judicial review has no obligation to provide documents or other material to the applicant. The respondent may but is not required to conduct a cross-examination on the applicant's affidavit, or to file affidavits of its own.
[18] I will now deal with the applicant's motions.
Motion for an order pursuant to Rule 311(1) to have the Administrator prepare the respondent's record.
[19] To my knowledge, Rule 311(1) has never been invoked by a party to require the Administrator to prepare the record for the opposing party, and it is far from clear that it can be used for that purpose. However, assuming it can be so used, the applicant has provided no reason to expect that the respondent will fail to meet its obligation to prepare a respondent's record that complies with Rule 310(2). This motion will be denied.
Motion for an order pursuant to Rule 312(a) to allow the applicant to additional affidavits.
[20] The applicant has not explained why the affidavits already filed are insufficient for his purposes, or what he proposes to say in additional affidavits. This motion will be denied.
Motion for an order pursuant to Rule 312(b) to conduct cross-examinations on affidavits additional to those provided for in Rule 308.
[21] As no additional affidavits are to be permitted, this motion is moot and will be denied for that reason.
Motion for an order pursuant to Rule 312(c) to allow the applicant to file a supplementary record and extend the time for doing so.
[22] The applicant has provided no basis for an order for extending the time. This motion will be denied.
Motion for an order pursuant to Rules 317 and 318 to have the Respondent provide all original documents, materials, information, audio-tapes, original subpoenas directed to the applicant and to the Registrar.
[23] This motion will be denied because the respondent is not obliged to provide this material to the applicant.
[24] The material the applicant seeks would appear to be in the possession of the Tax Court, or material that the Tax Court is in the process of obtaining. The applicant may wish to contact the Tax Court again to give better particulars of the information he requires. For example, the applicant may wish to specify that he requires copies of the notice of appeal he filed in the Tax Court, the Crown's reply, and any other pleadings. He may also wish to specify that he requires copies of the material filed in respect of the motions heard on January 10, 2003. The applicant may also wish to review the publicly accessible information in the Tax Court file to assist him in identifying the documents that he requires to support his application.
[25] If, after reasonable efforts, the applicant is unable to obtain material to which he believes he is entitled, he may consider making a new motion to this Court for an order requiring the Tax Court to provide the material to him, and to provide the additional time in the event the new material gives rise to a need for a further affidavit or supplementary record, as the case may be.
Motion for an order for discovery, to allow the taking of depositions from the respondent.
[26] There is no right to discovery in an application for judicial review. This motion will be denied.
Conclusion
[27] For the foregoing reasons, all of the applicant's motions will be denied. As the respondent has not asked for costs of this motion, none will be awarded.
(S) "K. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-53-03
A-62-03
STYLE OF CAUSE: David M. Sosiak v. Attorney General of Canada
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER OF THE HONOURABLE MADAME JUSTICE SHARLOW
DATED: May 5, 2003
WRITTEN REPRESENTATIONS BY:
Mr. David M. Sosiak APPLICANT ON HIS OWN BEHALF
Mr. Roger Leclaire FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. David M. Sosiak
St. Catharines, Ontario APPLICANT ON HIS OWN BEHALF
Mr. Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT