Crestbrook Forest Industries Ltd. v. Minister of National Revenue, (1993) 153 N.R. 122 (FCA)

• Judge: Isaac, C.J., Stone, J.A., and Craig, D.J.
• Court: Federal Court of Appeal (Canada)
• Case Date: April 22, 1993
• Jurisdiction: Canada (Federal)
• Citations: (1993), 153 N.R. 122 (FCA)

Crestbrook Forest Ind. Ltd. v. MNR (1993), 153 N.R. 122 (FCA)

MLB headnote and full text

Her Majesty the Queen (appellant/defendant) v. Crestbrook Forest Industries Limited (respondent/plaintiff)

(A-891-92)

Indexed As: Crestbrook Forest Industries Ltd. v. Minister of National Revenue

Federal Court of Appeal

Isaac, C.J., Stone, J.A.,

and Craig, D.J.

April 22, 1993.

Summary:

The taxpayer appealed reassessments by the Minister of National Revenue for the 1984-1986 taxation years. The taxpayer's nominee at examination for discovery was unable to answer certain questions. The Minister applied to compel the taxpayer to provide answers to 22 questions.

The Associate Senior Prothonotary of the Federal Court of Canada, Trial Division, ordered the taxpayer to answer only three of the questions. The Minister appealed. The taxpayer cross-appealed.

The Federal Court of Canada, Trial Divi­sion, in a judgment reported 55 F.T.R. 146, dismissed the Minister's appeal and allowed the cross-appeal. The Minister appealed.

The Federal Court of Appeal allowed the appeal, ordering the taxpayer to answer all 22 questions within 90 days or have its statement of claim struck out.

Practice - Topic 4177

Discovery - Examination - Duty of wit­ness to inform himself - [See Practice - Topic 4280.4 ].

Practice - Topic 4280.4

Discovery - Examination - Range of - Information in possession of foreign con­trolling company - A Canadian company, controlled by two foreign companies, appealed an income tax reassessment - The company's nominee at discovery could not answer questions respecting facts in the possession of the foreign companies - Federal Court Rule 465(15) required parties to obtain information within the "means of knowledge of the party" - The company claimed the general rule was that no party could be compelled to obtain information from a third party - The Fed­eral Court of Appeal stated that the com­pany was the alter ego of the foreign companies, the information sought was admittedly relevant and the company had the "means" to obtain the information - Accordingly, the company was ordered to provide the information within 90 days or its assessment appeal would be struck.

Cases Noticed:

Leitch v. Grand Trunk Railway (1890), 13 P.R. 369 (Ont. C.A.), refd to. [para. 34].

Irish Shipping Ltd. v. R., [1974] 1 F.C. 445 (T.D.), refd to. [para. 34].

Champion Truck Bodies Ltd. v. Canada (1986), 6 F.T.R. 63 (T.D.), refd to. [para. 35].

Sperry Corp. v. John Deere Ltd. (1984), 82 C.P.R.(2d) 1 (F.C.T.D.), refd to. [para. 36].

Control Data Canada Ltd. v. Senstar Corp. (1987), 10 F.T.R. 153; 13 C.P.R.(3d) 546 (T.D.), refd to. [para. 37].

Indalex Ltd. v. Minister of National Reve­nue (1984), 84 D.T.C. 6018 (F.C.T.D.), refd to. [para. 37].

Indalex Ltd. v. Minister of National Reve­nue (1986), 86 D.T.C. 6039, refd to. [para. 37].

Indalex Ltd. v. Minister of National Reve­nue (1987), 83 N.R. 185 (F.C.A.), refd to. [para. 37].

Monarch Marketing Systems Inc. v. Es­selte Metro Ltd. (1983), 75 C.P.R.(2d) 130 (F.C.T.D.), refd to. [para. 38].

Dallas v. Dallas (1960), 24 D.L.R.(2d) 746 (B.C.C.A.), refd to. [para. 40].

Lonrho Ltd. v. Shell Petroleum, [1980] Q.B. 358 (C.A.), refd to. [para. 41].

Doyle v. Minister of National Revenue, [1978] C.T.C. 597, refd to. [para. 58].

Ferguson v. Millican (1905), 11 O.R. 35 (C.A.), refd to. [para. 58, footnote 1].

R. v. Zingre, Wuest and Reiser, [1981] 2 S.C.R. 392; 38 N.R. 272; 10 Man.R.(2d) 62, refd to. [para. 58].

Xerox of Canada Ltd. v. I.B.M. Canada, [1976] 1 F.C. 213, refd to. [para. 59, footnote 2].

Statutes Noticed:

Federal Court Act, R.S.C. 1985, c. F-7, sect. 3 [para. 59, footnote 2].

Federal Court Rules, rule 465(1), rule 465(15), rule 465(17) [para. 33]; rule 465(18) [para. 25]; rule 465(20) [para. 33]; rule 477 [para. 25].

Income Tax Act, S.C. 1970-71-72, c. 63, sect. 231.6 [para. 56]; sect. 251 [para. 55].

Authors and Works Noticed:

Williston and Rolls, The Law of Civil Procedure, vol. 2, pp. 899 to 905 [para. 40].

Counsel:

John R. Shipley, for the appellant;

Loren A. Green and Ian Pittfield, for the respondent.

Solicitors of Record:

John C. Tait, Q.C., Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the appellant;

Thorsteinssons, Vancouver, British Co­lumbia, for the respondent.

This appeal was heard at Vancouver, B.C., on March 3, 1993, before Isaac, C.J., Stone, J.A., and Craig, D.J., of the Federal Court of Appeal.

On April 22, 1993, Isaac, C.J., delivered the following judgment for the Court of Appeal.