Docket: 2008-1720(IT)I
BETWEEN:
JAMES O. GROSSETT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Motion
heard on January 19, 2012 at Toronto, Ontario
Before: The Honourable
Justice J.M. Woods
Appearances:
|
For the Appellant:
|
The
Appellant himself
|
|
Counsel for the Respondent:
|
Ernesto Caceres
|
____________________________________________________________________
ORDER
UPON
motion by the appellant for an order setting aside a judgment of this Court
dated April 26, 2011 which dismissed an appeal in respect of assessments made
under the Income Tax Act for the 2002, 2003, 2004, 2005 and 2006
taxation years;
IT IS ORDERED that
the motion is granted, and the judgment is set aside.
IT IS FURTHER
ORDERED that the appeal is fixed for hearing before this Court at the Federal
Judicial Centre, 180 Queen Street West, 6th Floor, Toronto, Ontario, commencing
at 9:30 a.m. on March 28, 2012 for an estimated duration of three (3) days.
The parties shall
bear their own costs in respect of this motion.
Signed at Toronto, Ontario, this 14th day of February 2012.
“J.W. Woods”
Citation: 2012 TCC 51
Date: 20120214
Docket: 2008-1720(IT)I
BETWEEN:
JAMES O. GROSSETT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Woods J.
[1]
In this motion, the appellant, James Grossett, seeks to reopen
an appeal which was dismissed following the failure of the appellant to appear
at a status hearing. The judgment was issued by Rossiter A.C.J. on
April 26, 2011.
[2]
The appeal relates to reassessments
made under the Income Tax Act for the 2002 to 2006 taxation years,
inclusive.
[3]
The respondent objects to the
motion on the ground that the application was not made as soon as circumstances
permitted. Counsel submits that he spoke to the appellant in May, 2011 and
advised him of the judgment. Yet it appears that the appellant took no action
to set aside the judgment until August, 2011. The appellant filed a letter with
the Court dated April 15, 2011 which sought to have the judgment set aside, but
for reasons not satisfactorily explained by the appellant, the Court received
the letter on August 15, 2011.
[4]
Following the respondent’s
objection to the application, the Court directed that the application be dealt
with by way of a motion heard in Court. The appellant therefore filed a notice
of motion on January 10, 2012.
[5]
The respondent refers to section
18.21 of the Tax Court of Canada Act, which is reproduced below.
Failure to appear
18.21 (1) Where an
appellant does not appear on the day fixed for the hearing, or obtain an
adjournment of the hearing, of an appeal, the Court shall, on application by
the respondent and whether or not the appellant has received notice of the application,
order that the appeal be dismissed, unless the Court is of the opinion that
circumstances justify that the appeal be set down for hearing at a later date.
Application
(2) An
appellant whose appeal has been dismissed pursuant to subsection (1) may apply
to have the order of dismissal set aside and the appeal set down for hearing.
Where order set aside
(3) The
Court may set aside an order of dismissal made under subsection (1) where
(a) it
would have been unreasonable in all the circumstances for the appellant to
have attended the hearing; and
(b) the
appellant applied to have the order of dismissal set aside as soon as
circumstances permitted the application to be brought but, in any event, not
later than one hundred and eighty days after the day on which the order was
mailed to the appellant.
[6]
I agree with the respondent that
the appellant could have applied earlier to have the judgment set aside.
However, this is not fatal to this motion.
[7]
Paragraph 18.21(3) of
the Tax Court of Canada Act permits the Court to set aside an
order dismissing an appeal if two conditions are satisfied. One of the
requirements is that the application be made as soon as circumstances permit.
[8]
The problem with relying on this
provision is that it does not apply to a dismissal following a failure to
appear at a status hearing. The provision only applies if an appellant fails to
appear at the hearing of the appeal. Status hearings are preliminary
proceedings and are not commonly held in appeals governed by the informal
procedure. It is not surprising that there is no specific legislative provision
that applies in this case.
[9]
In the absence of an
applicable legislative provision, the motion
should be decided on a more general principle, namely, whether it would be just
and equitable to set the judgment aside considering all the circumstances,
including whether the application was brought on a timely basis. In my view, the
balance in this case favours setting the judgment aside.
[10]
First, although the appellant
could have acted sooner, the delay is not inordinate.
[11]
Second, it appears that the
appellant may not have received the notice of the status hearing, or the
judgment itself. These documents were sent back to the Registry as
undeliverable. Counsel for the respondent was informed of this for the first
time at the hearing.
[12]
Third, the respondent requests
that I take into account that the appeal has no merit. I was informed by
counsel that these appeals are similar to several others which have been
dismissed by this Court and which relate to inflated donation receipts.
Apparently one of the perpetrators pled guilty to a criminal charge in relation
to the scheme: Scott v The Queen, 2010 TCC 237, 2010 DTC 1172,
para. 17.
[13]
The notice of appeal filed by the
appellant suggests that the donation receipts are valid. Whether this is true
can only be determined based on evidence properly introduced at the hearing of
the appeal. It is not appropriate, in my view, to conclude that the appeal has
no merit.
[14]
Fourth, it
appears that the respondent would not be significantly prejudiced if the appeal
were reopened. Counsel for the respondent informed me that similar appeals have
been set down for hearing over a three-day period commencing March 28,
2012. This appeal could be scheduled to be heard at the same time.
[15]
For these reasons, I have
concluded that the judgment dismissing the appeals should be set aside. The
hearing of the appeal will be fixed to commence on March 28, 2012.
[16]
There will be no order as to
costs.
Signed at Toronto,
Ontario this 14th day of February 2012.
“J. M. Woods”
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