Date: 19990504
Docket: T-1904-96
BETWEEN:
SANDRO DOMINIC MOSCONE,
Plaintiff,
- and -
MINISTER OF NATIONAL REVENUE,
Defendant.
REASONS FOR ORDER AND ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] This action involves a plea for relief from an ascertained forfeiture of some $12,500. No particular principle is at stake. The Crown's criminal prosecution of the Plaintiff, arising out of the same facts, an excise tax violation, was dismissed: this dismissal, by reason of the standard of proof, is not conclusive, but it is some indication of the tenor of the matter.
[2] The Order that follows, pursuant to Rules 260 and 265, arises out of a pre-trial conference of 27 October 1998. At that conference, contrary to Rule 260, the Defendant Minister did not have an authorized representative present who had sufficient authority to make the discussion of settlement, a discussion which is required by Rule 263, in any way meaningful.
[3] At the time it was apparent that this matter, scheduled for a three-day trial in June of 1999, ought to be settled. Therefore, in addition to providing the parties with a Memorandum in Aid of Settlement, on 30 October 1998, I also issued a Memorandum, arising out of the pre-trial conference, dated 29 October 1998, setting a settlement conference for 11 May 1999. That memorandum concluded:
| Given the amount at stake this is an action which ought to be settled, by compromise if necessary. In the event of a settlement, would you please advise the Court as soon as possible so that the trial date might be re-allocated. Alternately, there will be a settlement conference to evaluate this matter at 9:00 a.m. on 11 May 1999 at which both the Plaintiff and a representative of the Crown, who has full authority to enter into meaningful settlement negotiations and to conclude a settlement, shall be present. |
[4] On 2 February 1999, counsel for the Minister requested that the Minister's representative attend on 11 May 1999 by telephone. I answered this with a further memorandum explaining the reason for my direction, that a representative of the Minister of National Revenue, with full authority, be present at the next meeting. I concluded the memo by setting out that if no one of any authority from the Ministry of National Revenue, from either Ontario or Vancouver, was able to attend for a substantial reason, that ought to be tested by motion and affidavit:
| If no one with any authority from the Ministry of National Revenue, either from Ontario or from Vancouver, is able, for substantial reason, to attend in Vancouver on 11 May 1999, for the settlement conference, that could become the subject of a motion, for the inability of any one to attend ought to be tested by affidavit. Such a motion may be brought on any Monday morning at Vancouver. |
[5] Counsel for the Minister then wrote, 3 May 1999, a week before the settlement conference was to begin, to say that a representative would come from Ottawa, on condition that the representative would not have any final decision-making authority:
| Our client is willing to send a representative from Ottawa on the condition that it is understood that this representative will not have final decision-making ability, but will be the person responsible for this file making a recommendation to the senior departmental official in whom is vested final decision-making ability. The representative will have authority to enter into meaningful settlement negotiations, and in the event of any tentative agreement being reached, a final decision would be available from Ottawa within approximately 24 hours, and possibly sooner. |
This is not appropriate for several reasons. First, the settlement discussion mandated by the Rules at the initial pre-trial conference got nowhere because the Minister's representative did not have any useful authority. Second, the terms of attendance have already been set out in a direction: it is not for the Crown to impose conditions at this point. Third, such a procedure, as suggested by counsel for the Crown, is far too complicated for a matter involving $12,500.
ORDER
| The Defendant may bring a motion, returnable 10 May 1999, supported by appropriate affidavit material, served and filed not later than close of Registry on 6 May 1999, for relief from the instruction that the Minister of National Revenue present a representative with proper decision-making ability at the 11 May 1999 settlement conference. In the event that no relief is obtained and a representative of the Minister with appropriate authority is not in attendance, counsel for the Minister should come to the 11 May 1999 settlement conference prepared to show cause why the Minister's defence ought not to be struck out. |
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
May 4, 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-1904-96
STYLE OF CAUSE: SANDRO DOMINIC MOSCONE
v.
MNR
MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCE OF COUNSEL.
REASONS FOR ORDER AND ORDER
OF MR. JOHN A. HARGRAVE, PROTHONOTARY
dated May 4, 1999
WRITTEN SUBMISSIONS BY:
Mr. Michael Golden for Plaintiff
Ms. Deborah Carlson for Defendant
SOLICITORS OF RECORD:
Michael Golden
Barrister & Solicitor
Burnaby, BC for Plaintiff
Morris Rosenberg for Defendant
Deputy Attorney General
of Canada