Del Zotto v. Canada
T-2022-93 / T-992-93
McKeown J.
12/10/95
14 pp.
Motions by plaintiff Del Zotto (1) to amend statement of claim under R. 420, (2) to require defence to produce new affidavit of documents-Motions by applicant Noble (1) to convert application for judicial review into action under Federal Court Act, s. 18.4, (2) for consolidation of two actions-Applicant, plaintiff attacking constitutional validity of Income Tax Act, s. 231.4-Associate Senior Prothonotary refusing to permit consolidation of judicial review matter and action, granting motion to strike claim against MNR-Purpose of inquiry must be looked at in deciding whether valid-Purpose of inquiry herein one of real questions in controversy between parties-Unfair to plaintiff to refuse amendment designed to get at real question in issue in matter based on prothonotary's decision made in another context without knowing purpose of inquiry in instant action would be very important factor-Limited removal of stay with respect to inquiry adequate solution to injustice faced by Crown with amendment-Will fully protect applicant, plaintiff from self-incrimination-Two paragraphs sought to be added to paragraph 15 of statement of claim deleted-Remaining amendments permitted-Federal Court Act, s. 18.4 giving Court discretion to convert motion into action-Number of factors herein favouring conversion of application for judicial review into action-In applicant's case, Court must consider and determine many factual and legal issues, including Charter issues-Issues extremely complex, not suitable for determination on motion supported by affidavits as opposed to viva voce evidence-In determining whether to convert judicial review into action, consideration must be given to: (1) undesirability of multiple proceedings, (2) desirability of avoiding unnecessary costs and delays, (3) whether particular issues involved require assessment of demeanour and credibility of witnesses and (4) need for Court to have full grasp of evidence-Judicial review to be converted into action as applicant met each of considerations-R. 1715 providing for consolidation of actions-Parties seeking same relief in both actions-Similarity of facts in both cases once actions joined-Basic unfairness to applicant if not given right to cross-examine Crown's witnesses-Both actions consolidated-Further affidavit of documents to be produced by respondent setting out all documents relevant and whether such documents privileged-Federal Court Rules, C.R.C., c. 663, RR. 420, 1715-Federal Court Act, R.S.C., 1985, c. F-7, s. 18.4 (as enacted by S.C. 1990, c. 8, s. 5)-Income Tax Act, S.C. 1970-71-72, c. 63, s. 231.4 (as enacted by S.C. 1986, c. 6, s. 121).