Date: 20011105
Docket: 1999-3815-IT-G
BETWEEN:
DANIEL RAMNARINE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasonsfor Order
Miller, J.T.C.C.
[1] This is a motion by the Appellant for the following:
(1) An Order under Rule 143 or pursuant to the inherent jurisdiction of the Court, directing that the evidence of the non-Saskatchewan resident witnesses to be called by the Appellant, be received by the Court by affidavit or telephone;
(2) In the alternative an Order under Rule 119 directing that the non-Saskatchewan resident witnesses of the Appellant may be examined in their jurisdiction of residence before the hearing of the appeal, for the purpose of having such testimony tendered as evidence at the hearing of the appeal; and
(3) An Order that the costs of this application shall be costs in the cause.
Facts
[2] Mr. Ramnarine was assessed for the 1994 and 1995 taxation years on the basis of what is commonly called a net worth assessment. Part of Mr. Ramnarine's grounds for appeal was that the Minister failed to take into account monies that he received from his former home of Guyana. Mr. Ramnarine moved to Regina, Saskatchewan in 1978 at the age of 45, due to what he described in his affidavit as a deteriorating political and economic climate in Guyana. In anticipation of leaving, Mr. Ramnarine claims to have disposed of assets and converted funds into foreign currency, which he gradually and secretly withdrew from Guyana over the years. Specifically in 1994 and 1995 he claims to have received $15,000 each year from Guyana. The out-of-jurisdiction witnesses Mr. Ramnarine wishes to call are:
(1) Mr. Ronald Reid who is from Guyana and presently resides in Ontario. Mr. Reid was employed with the Royal Bank of Canada in Guyana and from 1969 to 1974 was the Manager of the branch of the Royal Bank with whom the Appellant dealt. The Appellant indicated in his affidavit that Mr. Reid has knowledge of and will testify as to the following:
- Mr. Ramnarine's assets and business affairs during that period of time;
- The currency exchange controls and restrictions in Guyana;
- The various methods by which Guyanese residents were attempting to obtain foreign currency and move that currency out of Guyana; and
- The political climate in Guyana and the corresponding migration of Guyanese residents from Guyana.
(2) Mr. Gordon Pearce who resides in Ontario. Mr. Pearce is a Canadian who was a teacher in Guyana from 1971 to 1973. He was also in Guyana in 1976. His testimony is expected to cover the following:
- The political climate and racial tensions in Guyana when he was there;
- The manner in which he assisted Mr. Ramnarine in obtaining foreign (Canadian) currency; and
- The migration of Guyanese residents from Guyana during that time.
(3) Rayman Sripal who is a businessman resident in Guyana. His testimony is to cover the following:
- The political, economic and racial situation in Guyana as relevant to the appeal;
- The arrangement by which he held foreign currency for the Appellant and the delivery of such currency to the Appellant in 1994 and 1995; and
- The foreign exchange restrictions in place in Guyana and activities of Guyanese residents to obtain foreign currency, and transfer those funds from Guyana.
(4) Aubrey Denobrega (the Appellant's accountant in Guyana), Ramesh Maraj (a businessman) and Watson Bowling (the regional director of the government's National Insurance Scheme) who are all residents of Guyana. They are to testify as to the business and properties which the Appellant owned and the value of such properties.
[3] Mr. Ramnarine is now retired and living on old age pension. He claims not to have sufficient resources to provide the witnesses with conduct money to appear in Regina. The Appellant's counsel suggested the potential increased tax burden on the Appellant from the assessments was approximately $8,500 a year, though Respondent's counsel indicated the amount was well in excess of $12,000 a year.
[4] Portions of the transcript from discovery were provided in which Mr. Ramnarine indicated he travelled to Guyana yearly until 1990, though went again in 1994 with his wife. There was no evidence any of the witnesses referred to could not for health or any other reason travel to Regina. The issue was one of costs. There was no evidence of the costs or availability of videoconferencing facilities in Guyana.
Appellant's Arguments
[5] Appellant's counsel's starting point in his argument was section 13 of the Tax Court of Canada Act which states:
13. The Court has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents and other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in a superior court of record.
[6] He then went on to cite specific rules:
144.(1) Unless these rules provide otherwise, witnesses at a hearing shall be examined orally in Court and the examination may consist of direct examination, cross-examination and re-examination.
143.(1) Before or at the hearing, the Court may direct that evidence of a particular fact shall be given in such manner and subject to such conditions as the Court may specify and in particular that the evidence shall be given,
(a) by affidavit,
(b) by statement on oath or affirmation of information and belief,
(c) by the production of documents or of entries in books or of copies thereof,
(d) where a fact is a matter of common knowledge, either generally or in a particular place, by the production of a newspaper which contains a statement of that fact.
119. ...
(2) In exercising its discretion to direct an examination under subsection (1), the Court shall take into account,
(a) the convenience of the person whom the party seeks to examine,
(b) the possibility that the person will be unavailable to testify at the hearing by reason of death, infirmity or sickness,
(c) the possibility that the person will be beyond the jurisdiction of the Court at the time of the hearing,
(d) the expense of bringing the person to the hearing,
(e) whether the witness ought to give evidence in person at the hearing, and
(f) any other relevant consideration.
[7] These rules he suggested must be read in light of Rule 4 which reads:
4.(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every proceeding on its merits.
(2) Where matters are not provided for in these rules, the practice shall be determined by the Court, either on a motion for directions or after the event if no such motion has been made.
[8] Finally, though not raised specifically by Appellant's counsel, it is appropriate to produce Rule 9:
9. The Court may, only where and as necessary in the interests of justice, dispense with compliance with any rule at any time.
[9] Mr. Miller's argument was that interests of justice would be served by the granting of the application because:
(1) The amount of tax in issue was less than the cost of the attendance of all the witnesses;
(2) Even if the witnesses were prepared to travel to Regina the Appellant could not afford to provide conduct money;
(3) The evidence the out of jurisdiction witnesses would offer would be uncomplicated and examination would be brief;
(4) The testimony would not involve any documents; and
(5) The evidence of all six witnesses was relevant in establishing both the context for the exodus of assets from Guyana as well as specific dealings of the Appellant in the removal of funds from Guyana.
[10] The Appellant's counsel also referred me to the case of Regina v. Dix, [1998] A.J. No. 486 acknowledging that the issues of necessity and reliability were the key elements for me to consider. As stated in that case:
Even if the videoconference procedure is a form of commission evidence procedure, courts have moved beyond strict adherence to evidentiary categories and restrictions. In my view, the issues raised by this application are issues of necessity and reliability of the evidence. Different forms of out-of-court statements have been admitted into evidence even in the absence of cross-examination where the evidence met the requirements of necessity and reliability. The necessity requirement can be met when evidence of the same value or quality cannot otherwise be obtained. The requirement of reliability can be met be a circumstantial guarantee of trustworthiness.
[11] The necessity of the affidavit or telephone evidence is, according to the Appellant, because the costs of any other form of providing testimony is prohibitive. He also suggested that safeguards can be implemented to ensure reliability of evidence provided by telephone; for example, by the administration of the oath pursuant to both Canadian and Guyanese laws. Evidence by telephone would also provide the Respondent the opportunity to cross-examine.
[12] Appellant's counsel also brought to my attention Rule 284A.(1) of the Queen's Bench Rules of Saskatchewan which provides:
The court may order that the testimony of any witness taken viva voce by telephone or by any audio-visual method approved by the court shall be admissible in evidence
(a) where the parties consent, or
(b) where it may be necessary for the purposes of justice.
[13] These rules were interpreted in the case of Squires, Rennie and Decter v. Fong and Olah, (1983) 24 Sask. R. 159 (Q.B.) as follows:
...
It should be noted the rule was passed to modernize and effect economy in court proceedings. The rule should not be emasculated by any unduly restrictive interpretation, but it should not be given such a liberal construction as will open the flood gates for telephone evidence, thereby removing from all concerned the opportunity to observe the demeanour of the witness. Middle ground must be found to meet the objectives of the rules without depriving the court of the advantages, unnecessarily, of seeing the witness.
Crown's Argument
[14] The Crown reviewed the scope of the proposed testimony of each of the witnesses and expressed concerns as to the relevance of their testimony. Specifically for the two Ontario residents, Reid and Pearce, their testimony was to relate to a period in the seventies when they lived in Guyana. Further, it was intended to enlighten the Court on the political climate in Guyana at the time and the corresponding migration of Guyanese residents. This, the Crown contended, appeared more in the nature of opinion evidence, and relying on the case of Kapell v. Abel, [1996] S.J. No. 573 was not the sort of evidence appropriate for delivery by telephone. Justice Geatros had this to say in Kapell:
In the present case, there are factors such as those that confronted Halvorson J. which weigh against the granting of the order sought. In particular, it is expert testimony proposed to be elicited over the telephone; it is apparent that both examination and cross-examination will be lengthy and there is prejudice the defendant would likely encounter by reason of the difficulty in showing documents or exhibits to the witness during cross-examination. ...
[15] The Crown further suggested this is not the type of evidence that would be subject to cursory cross-examination but he anticipated that the cross-examination by the Crown would be lengthy.
[16] With respect to the Guyanese witnesses, the Crown acknowledged that only Mr. Sripal's evidence appeared to be directly relevant; the other Guyanese witnesses would not be able to provide any evidence of movement of assets nor any documentary evidence of ownership of assets.
[17] Regarding the two key elements of reliability and necessity, the Crown argued that the Appellant had not shown either of these considerations were adequately met. With respect to reliability, no evidence was tendered regarding Guyanese laws as to the administration of an oath and possible ensuing enforcement procedures. He referred to the Dix case in which such evidence was provided in relation to the jurisdiction of New York. The Dix case dealt with videoconferencing and indicated:
In this case, reliability is safeguarded by the technological sophistication of the videoconference facility which allows the witness to be seen and questioned in a live broadcast and by the use of an oath recognized and enforceable in the jurisdiction in which the witness will be situated when she gives her evidence as well as by the use of the oath recognized by this Court. It is the very essence of the oath that it binds the witness's conscience, even in the absence of temporal sanctions.
[18] With respect to necessity the Crown first challenged the issue of affordability, referring to the Appellant's evidence at discovery that he travelled to Guyana yearly. The Appellant later suggested he only went yearly until 1990 but admitted having visited again with his wife in 1995, which included a trip to Barbados. The Crown went on to argue that even if the Appellant legitimately could not afford to bring the witnesses to Regina, cost and convenience were not sufficient reasons to allow alternative methods of providing testimony. He cited Lefebvre v. Kitteringham, 37 Sask. R. 155 (Sask. Q.B.) at p. 156: as follows:
Inconvenience to witnesses is an unfortunate but inevitable adjunct of litigation and ought not, by itself, stand as a reason for taking evidence by telephone. The expense of bringing the witnesses to trial can be fully compensated by an order for costs if the trial judge is of the opinion that their personal attendance was unnecessary and that the opposite party unjustifiably refused to concur in an order permitting the taking of testimony by telephone.
Analysis
[19] Although I have been unable to find any precedent in this Court for the use of teleconferencing as an acceptable form of receiving evidence, I have been similarly unable to find any rule or precedent that precludes me from exercising my discretion in permitting such an alternative means. The Crown certainly did not suggest I did not have authority to make such an Order. Rule 9 invites me to do just that only, "as necessary in the interests of justice". I am also most mindful of one of the Court's primary objectives, embedded in Rule 4. This Court is frequented on a regular basis by taxpayers who believe they have overpaid their fair share of taxes, and in rectifying that situation they dig deeper into their pockets to confront the vast machinery of bureaucracy. This costly undertaking culminates for many with an appearance in Tax Court. Unlike many other procedures in other Courts, the Appellant is put to the proof of his claim, while the Crown relies on assumptions. Put in common vernacular, many Appellants express an attitude of the cards being stacked against them. In issues of money, which is basically what the Court addresses, economics too often work against the taxpayer. It is easy therefore to appreciate why the Tax Court sets out at the very outset of its Rules a clear sentiment to allay, as best we can, a taxpayer's three major concerns: timeliness, costliness and justice. Of the three the last is by far the most important.
[20] It is a balancing act between the latter two, costliness and justice, which is the issue before me with this application. The Appellant is a retired convenience store operator in Regina, who immigrated to Canada 23 years ago. He is faced with a tax bite of approximately $7,500 to $10,000 arising from the Crown's assumption there was no migration of $30,000 in funds from Guyana. He has six witnesses, four from Guyana and two from Ontario whom he believes will assist in proving his position. I am satisfied that the costs for attendance of all these witnesses would far exceed the tax involved.
[21] The principles I must apply in finding the right balance to ensure the interests of justice are served were well enunciated by counsel. I must find the proposed testimony is relevant, it is necessary that it be given other than by personal attendance and in so doing it must still be reliable.
[22] Turning first to the Ontario witnesses, I am satisfied that while their contact with the Appellant goes back many years, it was in those years the seeds of discontent were being sown in Guyana with the resulting migration of people and funds. I accept the Appellant's position that they could set a context which would assist the Court in understanding what steps the Appellant took. I believe it is relevant.
[23] Is it necessary that these witnesses, who I understand live in the Toronto area, provide evidence by affidavit or telephone, as there is no better way of receiving such testimony? There are two preferred methods available to these witnesses; firstly, personal attendance, and secondly, videoconferencing. Given that the nature of their testimony as opinion evidence could involve extensive cross-examination, I do not find it is suitable for the type of questioning for which teleconferencing or affidavit evidence might be used. As Justice Halvorson enunciated in the Squires case in identifying factors weighing against granting an Order for teleconference evidence:
... it is expert testimony which is proposed to be elicited over the telephone; examination and cross-examination would be lengthy, perhaps several hours; according to defence counsel, credibility of the appraiser is an issue; possible prejudice to the defendants because of the difficulty in showing documents or other exhibits to the witness during cross-examination; and the disadvantage to the court in not being able to observe the witness as he testifies.
[24] With respect to these witnesses I cannot find the costs and convenience factors significantly override the advantage from observing these witnesses in what could be lengthy testimony. Videoconferencing would however afford the Court this ability. Given these witnesses are within an easy car drive of Toronto (however easy any drive is in the Toronto area), videoconferencing may be a less expensive option. There is no question of reliability given the jurisdiction and nature of facilities available in both Toronto and Regina. While I would allow videoconferencing, this does not preclude the Appellant from still bringing one or both of these witnesses to Regina. Obviously he will have to weigh the respective costs, and may indeed find that domestic air flights are cheaper for at least one of the witnesses than 2 or 3 hours worth of videoconferencing.
[25] I turn now to the Guyanese witnesses, and specifically the group of Aubrey Denobrega (the Appellant's accountant in Guyana), Ramesh Maraj (a businessman in Guyana) and Watson Bowling (a regional director of National Insurance Scheme in Guyana). The Appellant indicated they would testify as to the business and property which the Appellant owned. The Appellant also admitted that such witnesses had no supporting documents in relation to such business and property. As the Appellant left in 1978, their knowledge of the Appellant's assets would understandably be somewhat stale. The Appellant's objective is to satisfy the Court that he moved $30,000 from Guyana to Canada in 1994 and 1995. There is no suggestion that these witnesses have any involvement or knowledge in that regard. The most they can add is that back in the seventies the Appellant owned some assets, not that he disposed of them, when he disposed of them, how much he received or what documentation was involved. I am not prepared to grant the extraordinary measure of testimony by telephone or affidavit for evidence which I am not satisfied is highly relevant.
[26] Finally, to the witness Rayman Sripal. As indicated earlier, Mr. Sripal is presented as a witness to give evidence both to the political, economic and racial situation in Guyana as well as providing first hand knowledge of holding and delivering funds to the Appellant in 1994 and 1995. The latter testimony is highly relevant to the Appellant's case. It also is not subject to extensive scrutiny by cross-examination or to any submission of documents. This is precisely the sort of evidence which can be considered for teleconferencing if the issues of necessity and reliability are met.
[27] Can Mr. Sripal provide evidence personally or by videoconference? I received no evidence of Mr. Sripal's ability or willingness to travel to Regina, nor any evidence of videoconferencing facilities in Guyana. The reason for non-appearance is cost and convenience, but that, in the circumstances, is a significant reason. To insist that Mr. Ramnarine incur $3,000 plus to bring this witness to Canada for a brief appearance to assist in demolishing the Crown's assumptions that he did not transfer assets to Canada from Guyana, is too onerous a burden to put upon this Appellant. This is not an expert witness, there will not be lengthy examination and there will be no necessity for reference to documents. What the Court sacrifices is observing Mr. Sripal's demeanour. While many might contend such observation is critical to the determination of credibility, it is my belief that what the witness says, rather than how he says it, is more pertinent in assessing credibility.[1] This is especially so if the nature of the testimony does not call for lengthy cross-examination.
[28] The final concern to address in allowing Mr. Sripal's testimony by telephone is that of reliability. While there was some implication from the Crown that a third world country such as Guyana might not have a legal system in which we could place much confidence as to the administration of oaths and enforcement of same, this was not pursued forcibly. I dismiss any such notion. It is imperative that a witness providing evidence in a jurisdiction other than Canada do so under oath in accordance with our laws, as well as in accordance with the local laws. It must be clear to the witness that he cannot escape responsibility for his actions should he have any thought that helping his friend, the Appellant, requires some shading of the truth. I believe this can best be accomplished by a member of the Guyana legal system, either judge or lawyer, explaining the consequences of perjury to the witness prior to administering an oath.
[29] There are instances where the interests of justice can best be served in the Tax Court by a practical approach to the implementation of rules. This is one of those instances. This granting of an Order for evidence by teleconferencing is not intended to open any floodgates. It is limited to the circumstances of this particular appeal and specifically the following factors:
(1) The appeal is in regard to what has been described as the blunt instrument of a net worth assessment;
(2) The cost is substantial in connection with the tax in issue;
(3) The Appellant's financial resources are prima facia limited;
(4) The witness is outside North America;
(5) The witness is not an expert;
(6) The witness will not rely on any documentary evidence;
(7) The testimony is limited in scope and is anticipated to be brief in duration; and
(8) The witness must testify in the presence of a judge or lawyer of the foreign jurisdiction under oath in that jurisdiction.
[30] It remains to the trial judge to weigh the evidence proffered by way of teleconferencing. For the above reasons I grant the Order set forth at the outset.
Signed at Ottawa, Canada this 5th day of November, 2001.
"Campbell J. Miller"
J.T.C.C.
COURT FILE NO.: 1999-3815(IT)G
STYLE OF CAUSE: Daniel Ramnarine v. The Queen
PLACE OF MOTION: Ottawa, Ontario
DATE OF MOTION: October 31, 2001
REASONS FOR ORDER BY: The Honourable Judge Campbell J. Miller
DATE OF ORDER: November 5th, 2001
PARTICIPANTS:
Counsel for the Appellant: Ronald L. Miller
Counsel for the Respondent: Jeff Pniowsky
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
1999-3815(IT)G
BETWEEN:
DANIEL RAMNARINE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard by telephone conference call on October 31, 2001
by the Honourable Judge Campbell J. Miller
Participants
Counsel for the Appellant: Ronald L. Miller
Counsel for the Respondent: Jeff Pniowsky
ORDER
Upon a motion made by counsel for the Appellant;
And upon hearing counsel for the parties,
IT IS ORDERED THAT:
(1) The witnesses Ronald Reid and Gordon Pearce may provide their testimony at trial by videoconferencing from Toronto, or from such other location in Canada as agreed by the parties.
(2) The witness Rayman Sripal may provide his testimony at trial by teleconferencing subject to the following conditions:
(i) Questions on examination and cross-examination shall be limited to the arrangement by which Mr. Sripal held foreign currency for the Appellant, and the delivery of the same to the Appellant in 1994 and 1995;
(ii) Mr. Sripal shall be present in the offices of a judge or lawyer in Guyana, as chosen by the Respondent, qualified as such pursuant to the laws of Guyana;
(iii) No documents shall be entered as exhibits through Mr. Sripal's testimony;
(iv) Mr. Sripal shall be sworn in, in accordance with the laws of Canada and in accordance with the laws of Guyana; and
(v) The judge or lawyer in Guyana before whom Mr. Sripal is to appear, and prior to Mr. Sripal's testimony, shall confirm to the Court at trial the nature of the enforcement proceedings for breach of a duly administered oath under Guyanese law and also that he or she is satisfied Mr. Sripal has properly identified himself as Rayman Sripal.
(3) Costs of this application shall be costs in the cause.
(4) The testimony of all the other Appellant's witnesses shall be given in person at trial.
Signed at Ottawa, Canada this 5th day of November, 2001.
|
"Campbell J. Miller" |
J.T.C.C.
[1] For more on the reliance of demeanour in assessing credibility one can review Justice O'Halloran's comments in Faryna v. Chorny, [1952] 2 D.L.R. 354 where he stated in part:
If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. ... A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. ...
It is noteworthy this case has been mentioned almost 200 times in cases over the last four decades.