Docket: 2011-1123(IT)G
BETWEEN:
URANIA DAPONTE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Motion
heard on July 22, 2011 at Toronto, Ontario
Before: The Honourable
Justice Valerie Miller
Appearances:
|
For the Appellant:
|
The
Appellant herself
|
|
Counsel for the Respondent:
|
Jenny P. Mboutsiadis
|
____________________________________________________________________
ORDER
Upon a motion by the Respondent for an
Order to strike the Notice of Appeal; or, in the alternative, an Order granting
the Respondent a 30 day extension of time from the date of this Order to file a
Reply to the Notice of Appeal, it is ordered that:
The Appellant will have 60 days from the
date of this Order to file an Amended Notice of Appeal which conforms to
section 48 of Tax Court of Canada Rules (General Procedure); and
The Respondent will have 60 days after
service of the Amended Notice of Appeal to file a Reply to the Amended Notice
of Appeal and five days after filing the Reply with the Court to serve a copy
of it on the Appellant.
Signed at Ottawa,
Canada, this 27th day of September 2011.
“V.A. Miller”
Citation: 2011TCC448
Date: 20110927
Docket: 2011-1123(IT)G
BETWEEN:
URANIA DAPONTE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
V.A. Miller J.
[1]
This is a motion by the
Respondent for an Order to strike the Notice of Appeal; or, in the alternative,
an Order granting the Respondent a 30 day extension of time from the date of
this Order to file a Reply to the Notice of Appeal. The Grounds for the Motion
are that the Notice of Appeal discloses no reasonable grounds of appeal; it
includes a plethora of evidence and irrelevant material; the Notice of Appeal
may prejudice or delay the fair hearing of the action; and, the Notice of
Appeal does not comply with section 48 of the Tax Court of Canada Rules
(General Procedure).
[2]
The Appellant was
present at the hearing of this motion. She was not represented by counsel but
her daughter-in-law appeared with her and translated for her.
[3]
The test that is used
for striking out pleadings is whether, assuming the facts stated in the
pleadings are true, is it “plain and obvious” that the appeal cannot succeed[1]? A Notice of
Appeal will only be struck if the appeal is certain to fail[2].
[4]
The Notice of Appeal
disclosed that expenses were disallowed by the Minister of National Revenue for
the Appellant’s 2005 and 2006 taxation year. There are no facts plead with
respect to these expenses.
[5]
The Notice of Appeal
does include evidence and irrelevant material.
[6]
The Appellant, through
her daughter-in-law, has stated that she is in the process of hiring a lawyer
to represent her in this appeal.
[7]
After consideration and
because the Appellant was not represented by counsel at the hearing of the
motion, I will not order that the Notice of Appeal be struck in its entirety;
but I do order that the second paragraph be struck. It reads:
My previous accountant did not render his services for the years of 2005
and 2006. Upon discovering that my tax affairs were not handled professionally,
I had to hire a new accountant to complete the outstanding tax returns. My
previous accountant was extremely uncooperative with me and my new accountant.
When I did receive my records, they were thrown in many boxes and were not
organized in any fashion. I am sure that many original documents were lost by
my previous accountant.
[8]
The Appellant will have
60 days from the date of this Order to file an Amended Notice of Appeal which
conforms to section 48 of Tax Court of Canada Rules (General Procedure).
[9]
The Respondent will
have 60 days after service of the Amended Notice of Appeal to file a Reply to
the Amended Notice of Appeal and five days after filing the Reply with the Court
to serve a copy of it on the Appellant.
Signed at Ottawa, Canada, this 27th day of September 2011.
“V.A. Miller”
CITATION: 2011TCC448
COURT FILE NO.: 2011-1123(IT)G
STYLE OF CAUSE: URANIA DAPONTE AND
THE
QUEEN
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: July 22, 2011
REASONS FOR ORDER
BY: The Honourable Justice Valerie Miller
DATE OF ORDER: September 27, 2011
APPEARANCES:
|
For the
Appellant:
|
The Appellant herself
|
|
Counsel for the
Respondent:
|
Jenny P. Mboutsiadis
|
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the
Respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa,
Canada
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