Date:
20021212
Docket:
2002-1463-IT-G
BETWEEN:
CHASE BRYANT
INC.,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Reasons
for Order
Bowman,
A.C.J.
[1]
This matter involves a request by Mr. Robert A. Gunderson to
obtain the court's permission to represent the
appellant.
[2]
Subsection 30(2) of the Tax Court of Canada Rules
(General Procedure) provides
A corporation shall be represented by counsel in all proceedings
in the Court, unless the Court, in special circumstances, grants
leave to the corporation to be represented by an officer of the
corporation.
[3]
Mr. Gunderson is a 25% shareholder of the appellant and is
also a director. He is not an officer and technically this would
disqualify him from representing the company. If I were otherwise
inclined to grant his request that would not be an insuperable
obstacle because I would simply have made the order granting him
permission to represent the company conditional upon his becoming
an officer. He should have no difficulty since the remaining 75%
of the shares are owned by his mother and his brother.
[4]
In Pratts Wholesale Limited v. The Queen,
98 DTC 1561, Beaubier J. of this court applied the
four factors stated by Muldoon J. in Kobetek Systems Ltd.
v. R., [1998] 1 C.T.C. 308 at page 310.
From these cases the following factors appear to be relevant to
the determination of whether special circumstances exist: whether
the corporation can pay for a lawyer; whether the proposed
representative will be required to appear as advocate and as
witness; the complexity of the legal issues to be determined (and
therefore whether it appears that the representative will be able
to handle the legal issues) and whether the action can proceed in
an expeditious manner.
[5]
These factors were referred to by Bowie J. in RFA Natural
Gas Inc. v. R., [2000] G.S.T.C. 40.
[6]
The factors referred to in these cases are a useful starting
point but they are neither determinative nor exhaustive. For
example in RFA Natural Gas Bowie J. did not put much
weight on the question whether the proposed representative might
appear as a witness. I respectfully agree.
[7]
If there is one factor that outweighs the others it is whether
the company can afford to pay a lawyer. If it can it is difficult
to imagine circumstances which would justify a departure from the
rule that a corporation must be represented by counsel. In
Mavito Inc. c. R., [2001] 2 C.T.C. 2048,
Tardif J. considered a corporate appellant's inability
to pay a lawyer's fees as "a decisive factor" in
such a motion as this.
[8]
In this case the appellant's financial statements for 1997
and 1998 were put in evidence and they show a company in very
healthy financial condition. It was admitted by
Mr. Gunderson that it is more or less the same situation
today. It can well afford a lawyer.
[9]
Mr. Gunderson argued that his familiarity with the
company's affairs and its voluminous records - it had offices
in two cities - means that he will be able to move the case along
more expeditiously than if he had to instruct a lawyer in the
somewhat complex factual matters involved here. He says that the
whole problem stems from a breakdown of communications between
the company's accountant and the CCRA. It seems that
non-legal representation has not helped the company up to now.
Possibly the best way of moving the matter along is to retain the
services of a competent tax counsel who can either attempt to
settle the case, or, if the matter goes to trial, marshal and
present the facts in an orderly way.
[10] There is
another factor that militates against my granting the request.
Mr. Gunderson lives in the United States where he is the
chief executive officer of a company that is based in London,
England. It appears he travels extensively in connection with his
work. It is inefficient to have the appellant represented by a
non-lawyer who is also a non-resident who might be anywhere in
the world. There have already been delays in the hearing of this
motion because of Mr. Gunderson's unavailability. If the
matter is to proceed expeditiously it is far preferable to have a
lawyer in Canada upon whom notices can be served and who can
prepare a list of documents and ensure that examinations for
discovery can be held in a timely fashion.
[11] In short,
no evidence of special circumstances has been put forward that
would justify the court's exercising its discretion to permit
a non-lawyer to represent the company.
[12] The motion
is dismissed. Costs will be in the cause.
[13] In the
Pratts Wholesale case Beaubier J. gave the
appellant 45 days in which to appoint legal counsel who
could file an appearance to act as counsel of record. I do not
propose to make a similar order, but I think the appellant should
move with all possible despatch to appoint counsel who may wish
to consider whether any steps are necessary in addition to filing
an appearance.
Signed at
Ottawa, Canada, this 12th day of December 2002.
A.C.J.COURT
FILE
NO.:
2002-1463(IT)G
STYLE OF
CAUSE:
Between Chase Bryant Inc. and
Her Majesty The Queen
PLACE OF
HEARING:
Victoria, British Columbia
DATE OF
HEARING:
December 3, 2002
REASONS FOR
ORDER
BY:
The Honourable D.G.H. Bowman
Associate Chief Judge
DATE OF
ORDER:
December 12, 2002
APPEARANCES:
Agent for
the
Appellant:
Robert A. Gunderson
Counsel
for the
Respondent:
Eric Douglas, Esq.
COUNSEL OF
RECORD:
For the
Appellant:
Name:
--
Firm:
--
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2002-1463(IT)G
BETWEEN:
CHASE BRYANT
INC.,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Application
heard on December 3, 2002, at Victoria, British Columbia,
by
The
Honourable D.G.H. Bowman, Associate Chief Judge
Appearances
Agent for
the
Appellant:
Robert A. Gunderson
Counsel
for the
Respondent:
Eric Douglas, Esq.
ORDER
Upon application by the Mr. Robert A. Gunderson to represent the
appellant in its appeal before the court
And upon hearing what was alleged by the parties
It is ordered that the application be dismissed.
It is further ordered that costs be costs in the
cause.
Signed at
Ottawa, Canada, this 12th day of December 2002.
A.C.J.
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