Date: 20010730
Docket: T-942-00
Neutral citation: 2001 FCT 843
BETWEEN:
THE HONOURABLE ROBERT H. NELSON
FOUNDER PRESIDENT OF PUBLIC DEFENDERS
FOR HIMSELF AND AS REPRESENTATIVE OF ALL
THOSE ALSO IMPROPERLY DENIED BENEFITS
Plaintiff
- and -
HER MAJESTY THE QUEEN
AS REPRESENTED BY THE HON. MARTIN CAUCHON
MINISTER OF CANADA CUSTOMS AND REVENUE AGENCY
Defendant
[1] These reasons arise out the Plaintiff's 21 June 2001 motion to subpoena a number of witnesses, well-known persons, ranging from counsel for the Defendant, through The Honourable Martin Cauchon, Minister of National Revenue, to the Prime Minister of Canada and more specifically:
Robert Carvalho
Honourable Martin Cauchon, Minister of National Revenue
J. McKenzie
J. McNally
Michael Zuber
Selinder Pandher
Jane Stewart, Chief of Appeals
Herb Dhaliwal
Morris A. Rosenberg
Paul Martin
Anne McLellan
Jean Chretien
The subpoenas requested for these twelve witnesses are apparently in connection with the 16 October 2001 trial in this action, which deals with tax matters going back to perhaps 1984.
[2] I have considered the Plaintiff's 94 page motion record, and his reply containing affidavits, documents and argument. Many of the documents are familiar, having appeared in support of the Plaintiff's previous motions; some of the material is new; and little if any of the material is remotely relevant. Indeed, while Mr. Nelson makes bold unsupported statements in his written arguments as to the need for the twelve witnesses, none of the facts deposed to by Mr. Nelson support the granting of any of the subpoenas requested.
[3] By way of further background, the Plaintiff, by motion dated 15 March 2001, applied to have a pre-trial conference set down for 16 April 2001 and for an order that the Minister of National Revenue, The Honourable Martin Cauchon, attend. That motion was dismissed by Mr. Justice Campbell, by order of 26 April 2001. That order was appealed, the Plaintiff requesting the Federal Court of Appeal to require that Mr. Cauchon attend a dispute resolution conference on 15 May 2001. The appeal is still outstanding.
[4] By order of 17 May 2001, an order which arose out of a pre-trial conference that day, I set the trial in this matter for 16 October 2001 and provided various notification requirements which the Plaintiff was to follow should he wish leave to issue a subpoena against The Honourable Martin Cauchon, to require him to attend at the trial. This order was appealed to Mr. Justice MacKay, who dismissed the appeal on 14 June 2001, with costs against the Plaintiff.
[5] By yet another notice of motion, this one dated 24 May 2001, the Plaintiff again applied for a subpoena of The Honourable Martin Cauchon, to require him to attend at the trial, a motion which was dismissed by Mr. Justice MacKay, again by order of 14 June 2001 and again with costs against the Plaintiff.
[6] Both of Mr. Justice MacKay's orders of 14 June 2001 are under appeal.
[7] A party seeking a subpoena for a witness must establish that the witness is required in order to prove or produce a document or to answer relevant questions. Indeed, a subpoena must be issued in good faith for the purpose of obtaining relevant evidence: see for example The King v. Baines [1909] 1 K.B. 258, at 261 and 262. A subpoena ought not to be issued where the result is oppression, and indeed as set out in Senior v. Holdsworth, Ex parte Independent Television News Ltd. [1976] 1 Q.B 23, a decision of the Court of Appeal, a subpoena will be set aside where it is oppressive or an abuse of the process of the Court: see Senior v. Holdsworth at page 40 where Lord Justice Scarman considers the impropriety of issuing a subpoena for some purpose other than to obtain relevant evidence, for example to cause political embarrassment or where the intended witness has no relevant evidence to give.
[8] There is no evidence in Mr. Nelson's material that any of the persons for which he wishes subpoenas issued were involved in any of the events giving rise to the action. Nothing in Mr. Nelson's affidavit material satisfies the onus of establishing that any of the witnesses are required in order to prove or produce a document or to answer relevant questions. Moreover, subpoenas have already been the subject of unsuccessful motions by the Plaintiff including, specifically, motions to subpoena The Honourable Martin Cauchon.
[9] Given the history of this file and particularly its recent history, I accept the Defendant's contention that this motion is an attempt to harass The Honourable Martin Cauchon. As such it is an abuse.
[10] The conduct by the Plaintiff in this matter has been abusive. The harassment of the Crown, by attempting to subpoena witnesses who not only have no connection to the cause of action but also who appear not to be required to prove or produce documents or to answer relevant questions, is scandalous and even outrageous conduct, particularly where at least one of the subpoenas has been specifically denied in the past.
[11] Awarding costs against a party bringing an unsuccessful motion is not only a means to indemnify the successful litigant, to one degree or another, but also a means of deterring frivolous or outrageous conduct. However I must also keep in mind that, even in special circumstances which suggest a substantial award of costs, I should keep costs within limits so as not to deter a party from bringing uncertain but meritorious claims. This was all neatly put by Madam Justice McLaughlin of the B.C. Court of Appeal, as she then was, in Houweling Nurseries v. Fisons Western Corporation (1989) 37 B.C.L.R. (2d) 2, at 25:
...Costs in our system of litigation serve the purpose, not only of indemnifying the successful litigant to a greater or lesser degree, but of deterring frivolous actions or defences. Parties, in calculating the risks of proceeding with a particular action or defence, should be able to forecast with some degree of precision what penalty they face should they be unsuccessful. Moreover, there is a sound reason for keeping costs within relatively modest limits. The possibility of high costs may unduly deter a party from bringing an uncertain but meritorious claim or defence.
[12] Taking all the circumstances into consideration, and particularly the tenacity with which the Plaintiff has pursued the subpoena issue in the face of past unfavourable orders and directions, an appropriate lump sum for costs, payable by the Plaintiff to the Defendant, is the maximum amount under Column Four of Tariff B, $900.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
30 July 2001
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-942-00
STYLE OF CAUSE: Robert H. Nelson v. HMQ
PLACE OF HEARING: Vancouver, British Columbia
MOTION DEALT WITH IN WRITING PURSUANT TO RULE 369
REASONS FOR ORDER OF HARGRAVE P.
DATED: July 30, 2001
WRITTEN SUBMISSIONS BY:
Robert H. Nelson FOR PLAINTIFF
Robert Carvalho FOR DEFENDANT
SOLICITORS OF RECORD:
Robert H. Nelson FOR PLAINTIFF
Morris Rosenberg FOR DEFENDANT
Deputy Attorney General
of Canada