DUMOULIN, J.:—By a notice of motion, argued in Court this 10th day of March, 1971, the respondent sought to obtain:
(a) An order dismissing the appellant’s action on the grounds of inobservance of our Rules 144, i.e. failure to comply with a notice for production of documents, and 128, i.e. for want of prosecution.
(b) In the event the Court should refuse an order dismissing the appeal, then, for an order dismissing the appeal, then, for an order pursuant to Rule 96A of the Exchequer Court, “requiring the Appellant to serve on the Respondent further and better particulars for trial in respect of the following matters contained in the Notice of Appeal, dated the 29th day of August, 1968’’. Such ‘‘further and better particulars’’ are specified as wished for in subparagraphs 1, 2, 3 and 4 of paragraph B of this motion.
(c) For an order requiring the appellant to give security for costs under Rule 266, in the event that the motion for the dismissal of the appeal be refused.
At the start of the hearing, respondent’s learned counsel, Mr. Rip, declared he was renouncing the obtention of an order for dismissal and would limit his requests to items listed in subparagraphs (b) and (c) above.
To appellant’s allegation in paragraph 1 of his notice of appeal that he ‘‘was at all material times an ordained Minister in good standing of the Union of Regular Baptist Churches and duly authorized under the laws of Quebec to keep registers of civil status’’, respondent opposes a complete denial expressed, with particular emphasis, in paragraph 21 of the reply. This paragraph states that:
21. The appellant was not a member of the clergy or of a religious order or a regular Minister of a religious denomination, and was not in charge of or ministering to a diocese, parish or congregation and was not engaged exclusively in fulltime administrative service by appointment of a religious order or religious denomination; and therefore may not deduct in computing his income for the years in appeal the value of the residence or other living accommodations occupied by him during the respective years, as described in Section 11(1) (q) of the Income Tax Act.
More significant still is the assertion in paragraph 27 of respondent’s reply that “ . . . the taxpayer (rather a misnomer when predicated upon one reproached with not having paid) failed to file with the Minister his returns of income for the 1955, 1956, 1957, 1958 and 1959 taxation years. . . .” Martin’s income returns for taxation years 1949 to 1954, inclusive, are also under attack, and so is that for 1960.
Under the circumstances, the Court is of the opinion that appellant, in compliance with Rule 96A(1) should produce the particulars sought in this motion, within 30 days of this date.
The other demand, security for costs, raises the moot point of the appellant being “ordinarily resident out of the jurisdiction” as said in Rule 266(1) (a).
In his affidavit, Mr. Gerard Coulombe, one of Martin’ S counsel, declares that :
During the months of June, July and August, 1970, the appellant resided at Dorion from Monday to Friday, every week. During the rest of 1970, the appellant came regularly to Dorion about once a month for a period of several days to discharge various religious and other obligations.
~ Such: averments, obtained from the apellant, tend, in my opinion, to prove ‘‘non-residence’’, ordinarily at least, more than anything else. Furthermore, they apply to one only of the 21 years under review and avoid the direct assertion that Martin ordinarily resides in the:jurisdiction.
The Court also took cognizance of another affidavit sworn to by Howard Buckman of Ottawa, an articled student at law employed in the Tax Litigation Section of the Department of Justice, who was informed by Harold Townson, an officer of the Montreal District Office, Department of National Revenue, of the undergoing facts in paragraph 21 cited hereunder:
21. I am informed by Mr. Harold Townson, an officer of the Montreal District Office, Department of National Revenue, that the appellant, and verily believe that Harold George Martin, has no assets or property in Canada and resides during autumn and winter months in Florida, one of the United States of America and resides during the summer months at one of the islands known as the Thousand Islands in New York, one of the United States of America.
I therefore reach the conclusion that the appellant is ordinarily resident out of the jurisdiction, in the meaning of Rule 266(1) (a), and should in consequence deposit a sum of $800 as security for the respondent’s costs within a delay of 30 days of this date.
Costs of this motion to follow the issue of the cause.