Docket: 2007-2974(IT)I
BETWEEN:
CHARLENE ECHUM,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Before: The Honourable
Justice G. A. Sheridan
____________________________________________________________________
ORDER
Whereas the Appellant, Charlene Echum, applied to have
the dismissal of her Informal Procedure appeals of her 2004, 2005, 2006 and
2007 taxation years set aside under section 18.21 of the Tax Court of Canada
Act;
And
having considered the factors set out in the Appellant’s letter in light of the
criteria for the setting aside of an order of dismissal under paragraphs 18.21(3)(a)
and (b) of the Act;
And not being satisfied that the Appellant has shown
that “it would have been unreasonable in all the circumstances” for her to have
attended the hearing;
IT IS HEREBY ORDERED THAT the Appellant’s application
to set aside the Order dated September 15, 2011 is dismissed in accordance with
the attached Reasons for Order.
Signed at Toronto, Ontario, this 26th day of October 2011.
“G. A. Sheridan”
Citation: 2011TCC489
Date: 20111026
Docket: 2007-2974(IT)I
BETWEEN:
CHARLENE ECHUM,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Sheridan J.
[1]
By letter dated October
11, 2011, the Appellant requested that the Court set aside an Order dismissing
her appeals under subsection 18.21(1) of the Tax Court of Canada Act. The
appeals having proceeded under the Informal Procedure, it was appropriate to
treat her letter as an application to set aside the order of dismissal as
required by subsection 18.21(2). For such an order to be granted, the Appellant
must satisfy the criteria in paragraphs (a) and (b) of subsection
18.21(3):
(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.
[2]
I accept the
Appellant’s explanation that certain medical problems affecting the members of
her family in the days following the dismissal of her appeals prevented her
from applying to set aside the dismissal of her appeals prior to October 11,
2011. Thus, I am satisfied that she has satisfied the timeliness requirement
under paragraph 18.21(3)(b) of the Act. However, after carefully
considering the reasons for her failure to appear and having reviewed the Court
file with regard to the Appellant’s prosecution of her appeals, I am far from
convinced “it would have been unreasonable in all the circumstances” for her to
have attended the hearing within the meaning of paragraph 18.21(3)(a) of
the Act.
[3]
These appeals are part
of a series of appeals involving taxpayers who were placed with third-party
employers by an agency known as Native Leasing
Services. A Notice of Appeal was filed by Native Leasing Services on the
Appellant’s behalf on May 3, 2007. As was its practice, Native Leasing Services
filed a generic Notice of Appeal giving no particulars of the Appellant’s employment
circumstances. However, the Appellant seems to have been aware of the appeals
as the following month, she filed with the Court a request to waive the Informal
Procedure filing fees in which she provided details of her personal financial
situation. Her request was duly granted on June 29, 2007.
[4]
Nothing further happened until
January 11, 2010 when (then) counsel for Native Leasing Services filed an amended
Notice of Appeal on behalf of the Appellant. The only change was to include the
assessments from two other taxation years to the appeal.
[5]
Over a year later, in March 2011,
the Court ordered a status hearing to determine the Appellant’s intentions with
regard to her appeals. The Court issued a Notice of Status Hearing setting the
matter down for hearing in Timmins, Ontario on April 18, 2011.
[6]
On April 5, 2011, the Appellant
requested an adjournment of the status hearing for medical reasons; the matter
was adjourned to April 19, 2011. The Appellant appeared on her own behalf
before D’Arcy, J. who by Order dated May 5, 2011, set dates for the
completion of next steps in the appeals. In addition to the deadlines for
filing an Amended Notice of Appeal and the Reply to the Amended Notice of
Appeal, the Order set the hearing of the appeal for September 12, 2011 in Timmins, Ontario.
[7]
The Appellant duly filed her
Amended Notice of Appeal within the time permitted. In the first paragraph of
the Amended Notice of Appeal the Appellant specifically referred to the hearing
date of September 12, 2011. While still no further details of her employment
with the placement agency were provided, the Amended Notice of Appeal contained
references to generic treaty and aboriginal rights but without further explanation
as to how these related to the Appellant’s particular circumstances.
[8]
The Respondent’s Reply to the
Amended Notice of Appeal was filed and served on the Appellant on June 29,
2011. In her cover letter to the Appellant, counsel for the Respondent noted
that the Amended Notice of Appeal appeared to raise constitutional questions.
Having first acknowledged that she was not in a position to provide legal
advice to the Appellant, counsel went on to inform the Appellant of certain
statutory requirements attached to such pleadings and advised that she intended
to request that the Court convene a telephone conference call with the parties “to
discuss whether there are other steps [the Appellant] should be taking before
the hearing of [her] appeal scheduled for the week of September 12, 2011”.
[9]
Counsel’s request was duly made
and by letter dated July 20, 2011, the Court sent notice to the parties of the
telephone conference call scheduled for August 3, 2011 at approximately 11:00
a.m. On the appointed day, no one appeared for the Appellant. There is nothing
on the Court file to show that the Appellant did not receive the notice or that
she contacted the Court to request it be held at another time.
[10]
On September 1, 2011, the
Respondent served on the Appellant a motion record returnable on September 12,
2011, the date set for the hearing of the Appellant’s appeals, stating, among
other things, the Respondent’s intention to seek an order to dismiss because of
the Appellant’s delay in prosecuting her appeals.
[11]
On September 12, 2011, the matter
was called for hearing in Timmins,
Ontario. Again, no one appeared for the
Appellant. There were other matters set for the same day and the Court remained
in session until approximately 1:30 p.m. During that time, no one appeared for
the Appellant nor was any call received to explain the Appellant’s absence.
[12]
It is against this backdrop that
the Appellant’s failure to appear at the September 12, 2011 hearing must be
considered. According to the Appellant’s letter of October 11, 2011, the
reasons for her absence are that she was under so much stress that she forgot
about it; and/or that she did not have childcare available.
[13]
Leaving aside the inherent
contradiction in these alternative explanations, the Appellant’s justification
for her absence falls short of satisfying the requirements for setting aside
the order to dismiss. While I am sympathetic to the Appellant’s description of
her work and family pressures, it is clear from the record that her appeals had
been going on for years and that she had been personally handling the prosecution
of her appeals. In the months leading up the appeals, numerous references were
made to the September 12, 2011 hearing date. Within the limits of their
respective duties, both counsel for the Respondent and the Court made efforts
to assist the Appellant with the procedural aspects of her appeals, especially just
prior to the hearing date. The Appellant was aware of the possibility of
requesting an adjournment because she had done it before. According to her letter,
it was during July and August 2011 that she was experiencing difficulties with childcare
responsibilities and changes at work yet she took no action to request the
hearing be delayed. Notwithstanding the useful information provided to her in
the Respondent’s letter of June 29, 2011, the Appellant did not
participate in the case management conference call convened on August 3, 2011, about
a month prior to the hearing date.
[14]
Many self-represented taxpayers
face problems similar to those described by the Appellant and yet still manage
not to forget their trial dates and/or to arrange for childcare on the
appointed day. I am also mindful of the fact that arranging for hearings in Timmins,
Ontario is an expensive proposition, a cost that is borne by all the taxpayers
in Canada. The hearing on September 12, 2011 was the second sitting scheduled in
that center for the Appellant’s benefit. While the Court makes every effort to
accommodate the needs of taxpayers wherever they live in this vast country,
with that privilege comes the responsibility of meeting their obligations in
respect of their appeals. In my view, the Appellant has failed to keep up her
end of the bargain.
[15]
In these circumstances, I am not
persuaded that the Appellant has met the requirements of paragraph 18.21(3)(a)
and accordingly, her application to set aside the order of dismissal of
September 15, 2011 is dismissed.
Signed at Toronto,
Ontario, this 26th day of October 2011.
“G. A. Sheridan”
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