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Date: 20010418

Docket: T-2407-96

Neutral citation: 2001 FCT 347

BETWEEN:

GEORGE WILLIAM HARRIS

Plaintiff

                                                                                                           

                                                     

-and-

HER MAJESTY THE QUEEN and

THE MINISTER OF NATIONAL REVENUE

      

Defendants

                    REASONS FOR ORDER AND ORDER

HENEGHAN J.

[1]    The Plaintiff brought a notice of motion seeking an Order to allow him to cross-examine Roy Shultis upon the amended certificate filed by him pursuant to the Canada Evidence Act, R.S. 1985, c. C-5, section 38(2) (the "Act").


[2]    The Plaintiff argues that since the Defendants have the right to cross-examine him upon his affidavit filed in support of the notice of motion seeking disclosure pursuant to the Federal Court Rules, 1998, Rule 229, the interests of fairness dictate that he should be allowed to cross-examine Mr. Shultis.

[3]    Furthermore, the Plaintiff submits that he should be allowed to explore the bases for the opinions expressed by Mr. Shultis in paragraphs 7 to 9 and 17 to 17 of his certificate.

[4]    The Defendants submit that there is no right, according to statute or the common law, for cross-examination on a certificate issued pursuant to the Act. As well, the Defendants say that the sufficiency of the certificate is a matter to be considered upon the hearing of the notice of motion seeking disclosure under Rule 229.

[5]    I accept the submissions made by the Defendants and choose to follow the decision in Kevork et al. v. The Queen et al., [1984] 2 F.C. 753.

[6]    The decision to allow or refuse cross-examinations on a certificate issued under the Act is a discretionary one. The exercise of discretion is related to the evidentiary basis laid by the party seeking the discretionary order.

[7]    In the present circumstances, I am not satisfied that the Plaintiff has shown why he should be allowed to cross-examine Mr. Shultis on his certificate. The Plaintiff has not shown a compelling reason why the general rule should not apply.


ORDER

[8]                The motion is dismissed, no order as to costs.

    "E. Heneghan"

                                                                                               J.F.C.C.                        

Toronto, Ontario

April 18, 2001


FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO:                                                    T-2407-96

STYLE OF CAUSE:                                         GEORGE WILLIAM HARRIS

Plaintiff

                                                                                                                                         

-and-

HER MAJESTY THE QUEEN and

THE MINISTER OF NATIONAL REVENUE

      

Defendants

DATE OF HEARING:                          TUESDAY, APRIL 18, 2001

PLACE OF HEARING:                                    TORONTO, ONTARIO

REASONS FOR ORDER

AND ORDER BY:                                           HENEGHAN J.

DATED:                                                            WEDNESDAY, APRIL 18, 2001

APPEARANCES BY:                                    

Teleconference:                                                 Mr. Norm Cuddy, and

Mr. Michael Conner

For the Plaintiff

Mr. Peter Kremer

                                                                    

For the Defendants

SOLICITORS OF RECORD:                       Scurfield, Tapper, Cuddy

Barristers & Solicitors

1000-330 Saint Mary Ave.

Winnipeg, Manitoba

R3C 3Z5


Public Interest Law Centre        

Legal Aid Manitoba

402-294 Portage Ave.

Winnipeg, Manitoba

R3C 0B8

For the Plaintiff

Morris Rosenberg

Deputy Attorney General of Canada

For the Defendants


FEDERAL COURT OF CANADA

                            Date: 20010418

                                                                                              Docket: T-2407-96

Between:

GEORGE WILLIAM HARRIS

Plaintiff

                                                                                                                                         

-and-

HER MAJESTY THE QUEEN and

THE MINISTER OF NATIONAL REVENUE

      

Defendants

                                                 

REASONS FOR ORDER

AND ORDER

                                                 

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