Date: 19990428
Docket: T-2231-98
MONTRÉAL, QUEBEC, APRIL 28, 1999
BEFORE: RICHARD MORNEAU, PROTHONOTARY
Between:
ULTRAMAR CANADA INC.,
Plaintiff,
AND
MINISTER OF NATIONAL REVENUE,
Defendant.
REASONS FOR ORDER AND ORDER
RICHARD MORNEAU, PROTHONOTARY:
[1] By this motion pursuant to Rule 312 of the Federal Court Rules (1998) ("the Rules"), the defendant is seeking leave to file the affidavit of Michel Côté as an affidavit additional to the affidavits already submitted by this party pursuant to Rule 307.
[2] By Michel Côté's affidavit the defendant intends to answer an argument that he maintains the plaintiff is raising for the first time in its memorandum filed pursuant to Rule 309. That argument by the plaintiff is that by two contracts, a release dated July 29, 1993 and another dated March 12, 1996, a third party, Soconav Inc., waived the right to claim from the plaintiff the proceeds of a claim for refund of taxes and drawback made to the defendant by the plaintiff. This argument is raised by the plaintiff to establish that at all relevant times the plaintiff could not be regarded as the debtor of Socanav Inc., itself a tax debtor of the defendant.
[3] It appears to me that the plaintiff made this argument to the defendant well before filing its memorandum. On December 2, 1997, eleven months before the plaintiff made its claim, the plaintiff indicated to the defendant " see page 77 of the plaintiff's record " that:
| [TRANSLATION] |
| Without limiting the generality of the foregoing, and as an alternative argument, even if the existence of such a contract is established by Justice Canada (it would have the burden of proof), Ultramar Ltée no longer owes these amounts to Socanav Inc. by the final and complete releases dated in July 29, 1993 and March 12, 1996 (Documents 3 and 4). |
[4] Subsequently, on filing its affidavits in support of its application the plaintiff indicated in paragraphs 12 and 13 of Jennifer Overend's affidavit that:
[TRANSLATION]
| 12. On July 23. 1993 the plaintiff, QMT Navigation Inc. and Socanav signed an agreement titled "Master Time Charter Agreement" and Socanav gave the plaintiff a full and final release from any obligation that the plaintiff may have had to Socanav, as appears in Exhibit D-12 attached hereto. |
| 13. On March 12, 1996 the plaintiff, QMT Navigation Inc., 3232522 Canada Inc. and Socanav signed an agreement titled "Amended and Restated Master Time Charter Agreement" amending the agreement described in paragraph 12 above and restating, without modification, the release attached thereto, as appears from Exhibit D-13 attached hereto. |
[5] I therefore do not feel that the defendant can argue that by paragraphs 23, 24, and in particular 25, of its memorandum the plaintiff is for the first time making the argument the defendant now wishes to rebut. It seems clear that at all times the releases were raised by the plaintiff to counter the defendant's argument that the plaintiff owed the money refunded to Socanav Inc. In this sense, the wording used by the plaintiff in paragraph 25 of its memorandum does not in any way alter and adds nothing new to this equation.
[6] Michel Côté's affidavit therefore cannot be seen as an affidavit responding to a new argument by the plaintiff. The filing of this affidavit should have been considered at the time the defendant filed the other affidavits of persons associated with Socanav Inc. There is nothing in the evidence submitted in support of the motion under review to indicate whether Mr. Côté's assistance was sought earlier, and if so, why it could not be obtained before this.
[7] The delay incurred by the defendant in filing Michel Côté's affidavit remains unjustified.
[8] Additionally, in disposing of a motion like the one at bar, and before finally concluding, I must look at the intrinsic value of the affidavit (that is, its admissibility and eventual usefulness to the Court). In this connection the defendant argued that the affidavit was submitted to assist the Court in interpreting the releases. However, in view of clause 22(a) of the release of March 12, 1996, and the few details contained in Mr. Côté's affidavit, I regard this affidavit as having very little intrinsic worth for the purposes of this motion since, in my opinion, it seeks to contradict the wording of the releases rather than interpreting them. I entirely concur with the plaintiff that if, despite the wording of clause 22(a), that clause must be read as not applying to a payment between the plaintiff and Socanav Inc. as the result of a refund from the defendant, Mr. Côté's affidavit should then have provided greater detail regarding the conclusions of discussions and negotiations referred to in his affidavit. Although the final assessment of the ultimate purpose of Mr. Côté's affidavit is the province of the judge of the merits, the defendant's motion nonetheless invites the Court to undertake a similar exercise to assess the potential usefulness of the affidavit. As I regard its purpose as one of contradiction rather than interpretation, it can have no potential usefulness.
[9] Finally, if Mr. Côté's affidavit were entered in the record significant delays would result in preparing this application, on account of the inevitable cross-examination that would ensue and the additional affidavits the plaintiff might well file.
[10] For these reasons, I consider it is in the interests of justice to dismiss this motion, with costs to follow.
| Richard Morneau Prothonotary |
Certified true translation
Bernard Olivier, LL. B.
| Federal Court of Canada Trial Division Date: 19990428 Docket: T-2231-98 Between: ULTRAMAR CANADA INC., Plaintiff, AND MINISTER OF NATIONAL REVENUE, Defendant. REASONS FOR ORDER AND ORDER |
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE No: T-2231-98
| STYLE OF CAUSE: ULTRAMAR CANADA INC., |
Plaintiff,
AND
MINISTER OF NATIONAL REVENUE,
Defendant.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 26, 1999
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS FOR ORDER: April 28, 1999
APPEARANCES:
Bruno Duguay for the plaintiff
Daniel Beauchamp for the defendant
SOLICITORS OF RECORD:
Stikeman, Elliott for the plaintiff
Pierre Martel
Bruno Duguay
Montréal, Quebec
Morris A. Rosenberg for the defendant
Deputy Attorney General of Canada