Date: 20001024
Docket: 2000-523-EI, 2000-525-CPP
BETWEEN:
BUDGET PROPANE CORPORATION,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
and
MORLEY RAYMER,
Intervenor.
____________________________________________________________________
Counsel for the Appellant: Samantha L. Callow
Counsel for the Respondent: Scott Simser and Sherry Darvish
For the Intervenor: The Intervenor himself
____________________________________________________________________
Reasons for Order
(Delivered orally from the Bench at Toronto, Ontario, on October 6, 2000)
McArthur J.T.C.C.
[1] A motion was presented by counsel for the Appellant for an order that the Intervenor, Morley Raymer, produce copies of all income tax returns from Revenue Canada for himself personally and for MR Enterprises for the relevant periods being 1996, 1997, 1998 and 1999 taxation years, at reasonable photocopy cost to the solicitor for the Appellant.
[2] The Appellant is appealing a decision of the Minister of National Revenue ruling that Morley Raymer, owner and operator of MR Enterprises, was an employee, rather than a contractor, for the purposes of pensionable employment and employment insurance while engaged with Budget Propane Corporation for the period October 21, 1996 to August 31, 1998 in accordance with the Canada Pension Plan and the Employment Insurance Act.
[3] Counsel for the Appellant submits that one of the relevant considerations in determining whether Mr. Raymer was under a contract for service or contract of service will be to consider the risk of loss of MR Enterprises and all of the circumstances involving his business, MR Enterprises. As such, the income tax returns of MR Enterprises of Morley Raymer are necessary for the proper determination of this appeal and are therefore relevant.
[4] The Intervenor was present at the hearing and made no representations. Through counsel for the Minister, Mr. Raymer turned down a suggestion by me that the specific information requested by the Appellant be turned over without anything further by editing the returns perhaps through blocking out the unrelated information. Counsel for the Minister stated that the Minister did not oppose the motion but, understandably, pursuant to section 241 of theIncome Tax Act, would not release the Intervenor's tax returns. My reasons for denying the motion are two-fold:
(a) there is a strong public interest in keeping a taxpayer's returns from production. Subsection 241(4) of the Income Tax Act balances the privacy interest of the taxpayer with respect to financial information and the interest of the Minister of National Revenue in being allowed to disclose taxpayer information to the extent necessary for effective administration of the Income Tax Act, the Employment Insurance Act and Canada Pension Plan. The Appellant has not satisfied me that the need to have the income tax returns produced at this time outweighs the public interest in keeping them from production. There is no evidence that the Minister's assumptions have been based in any way, on the income tax returns of Morley Raymer.
(b) Subsection 18(1) of the Tax Court Rules of Procedure concerning the Employment Insurance Act provides that a Court may, on application by a party, direct any other party to the appeal to make discovery of documents, and paragraph 18(1)(c) provides that there shall be discovery of documents and examination for discovery.
[5] This leaves the question of whether Morley Raymer is a party to the appeal? I think not. He has been invited to provide information in the appeal pursuant to subsection 93(1) of the Employment Insurance Act. The Intervenor is not a party to the action and has no carriage of the proceedings. There are other procedures to permit the Appellant to examine Mr. Raymer at the hearing, together with his documents which include, of course, a subpoena duces tecum. The motion is dismissed with costs in the cause.
Signed at Ottawa, Canada, this 24th day of October, 2000.
"C.H. McArthur"
J.T.C.C.
COURT FILE NO.: 2000-523(EI) and 2000-525(CPP)
STYLE OF CAUSE: Budget Propane Corporation
and Her Majesty the Queen and
Morley Raymer, Intervenor
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 3 and 6, 2000
REASONS FOR JUDGMENT BY: The Honourable Judge C.H. McArthur
DATE OF JUDGMENT: October 16, 2000
APPEARANCES:
Counsel for the Appellant: Samantha L. Callow
Counsel for the Respondent: Scott Simser and Sherry Darvish
For the Intervenor: Morley Raymer
COUNSEL OF RECORD:
For the Appellant:
Name: Samantha L. Callow
Firm: Bell, Temple
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada