Date: 20020415
Docket: 2001-550-EI
BETWEEN:
LORETO SCAROLA,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasonsfor
Order
Bowman, A.C.J.
[1]
In this motion the appellant, through his counsel, seeks to set
aside a notice of withdrawal of his appeal under the
Employment Insurance Act. The facts are as follows.
[2]
On January 29, 2001 the appellant's lawyer, Mitchell
Worsoff, wrote to the London Tax Service Office of the CCRA
appealing to the Tax Court of Canada from a ruling. Obviously he
should have written to the Tax Court of Canada but this is a
common mistake and the CCRA forwarded the letter to this court
and the court acknowledged receipt on February 12, 2001 and
treated it as a valid appeal.
[3]
On February 20, 2001 Mr. Worsoff faxed the Registrar of
this court as follows:
PLS BE ADVISED UPON FURTHER ASSESSMENT WE ARE HEREBY
ABANDONING OUR NOTICE OF APPEAL.
[4]
On February 21, 2001 a Registry Officer of this court wrote
to Mr. Worsoff as follows.
Reference is made to the Notice of Withdrawal filed with the
Court on February 21, 2001.
Please be advised that the above-noted appeal is deemed
dismissed pursuant to subsection 16.2(2) of the Tax Court of
Canada Act. Consequently this file is now closed.
For your information, a copy of the Notice of Withdrawal and a
copy of this letter are being sent to all parties.
[5]
On April 26, 2001 Mr. Worsoff wrote to the court and
said
Re:
Loreto Scarola v. The Minister of National Revenue
File
#2001-550(EI)
This letter concerns the above matter. We kindly request that
you disregard our letter dated February 20, 2001, in which we
stated we would be abandoning our Notice of Appeal.
At the time of the letter, our client had insufficient funds
and was concerned he would not be able to continue with the
appeal.
We ask that you allow us to continue with the Notice of Appeal
that was acknowledged by the Registrar on February 9, 2001.
We also realize that this is both an unusual and by extension,
an untimely request however, our abandonment as noted above was
sent in haste. May we be extended the courtesy of continuing this
matter. It is meritorious, and not frivolous.
[6]
The court sent a copy of Mr. Worsoff's letter to the
Department of Justice asking for the respondent's position.
Counsel for the respondent replied on May 9, 2001 opposing
the request.
[7]
The motion was set down for hearing on June 20, 2001.
[8]
Before the motion was heard, Mr. Worsoff on June 14,
2001 wrote to the court as follows:
This letter concerns the above matter. We kindly request that
you disregard our letter dated April 26, 2001, in which we
stated we would ask you to allow us to continue with the Notice
of Appeal.
We no longer wish to proceed and would like to withdraw the
appeal.
If you should have any concerns or questions regarding this
matter do not hesitate to contact our office.
[9]
Nothing further appears to have happened until August 28,
2001 when Mr. Worsoff wrote to the court as follows.
Re:
Loreto Scarola vs The Ministry of National Revenue
File No.:
2001-550(EI)
Please be advised that we represent the above noted individual
with his Employment Insurance and Ministry of National Revenue
issues. Although several letters of correspondence have been
communicated to and from this office regarding Mr. Scarola's
potential appeal, we would kindly ask you to consider our
position currently and disregard all previous correspondence with
respect to making a decision to appeal the above noted
matter.
Although we have indicated previously that we no longer wish
to proceed with an appeal even though it was within our rights to
do so, we have since learned that an appeal to the Federal Tax
Court regarding this issue would be the appropriate course of
action at this time.
This morning, we attended before the Board of Referees at the
Employment and Insurance Board for a hearing with respect to Mr.
Scarola's over payment of employment insurance from the time
period of August 10th, 1992 until January
8th, 1993. It was learned through this hearing process
that while Mr. Scarola's record indicates that he did work
during this time period, which would be more than 20 weeks
allowing him to receive employment insurance benefits, the Board
of Referees bound themselves by the finding of the Ministry of
National Revenue such that Mr. Scarola only worked 18 weeks. Upon
receiving the decision of the Ministry of National Revenue herein
disclosed, both counsel and Mr. Scarola did not deem it necessary
to appeal this decision as we were under the impression that 18
weeks would qualify Mr. Scarola to receive benefits from
Employment and Immigration Canada.
At the hearing this morning, it was learned that although the
unemployment rate during the time period in which Mr. Scarola
worked was 11.4 percent within the City of Toronto, and as such
only 14 weeks of employment would be required to qualify for such
benefits, Mr. Scarola, being a new entrant to the work force,
needed 20 weeks of employment accordingly. This being the case we
would kindly ask you to allow us to file an appeal to the Federal
Tax Court to finally settle this issue. Again, Mr. Scarola's
record of employment clearly indicates that he did work over 20
weeks. However, due to the fact that this issue had arisen over
ten years ago, it was difficult for Mr. Scarola and his counsel
to prove that in fact that he did work over 20 weeks via evidence
from workers who worked with him on that specific job site. We
would ask you to entertain an appeal so we can put forth evidence
aside from the record of employment that in fact Mr. Scarola did
qualify to receive benefits that he received.
We will not retract this appeal request. The Board of Referees
in today's hearing granted us an adjournment for that
specific purpose. That Board awaits a decision from the Federal
Tax Court. If any further papers must be filed with the court for
such an appeal to be put forth, can you contact my office and
indicate what is needed to proceed with this matter.
Thank you kindly for your attention and patience and we look
forward to hearing your response.
[10] On
September 17, 2001 counsel for the respondent wrote to the
court and repeated her opposition to the appellant's
reinstatement of his appeal.
[11] The
matter was set down for hearing on November 6, 2001 and I
granted an adjournment to permit the parties to produce further
evidence in support of their respective positions.
[12] The
motion resumed on March 21, 2002 and Mr. Scarola
testified.
[13] In brief
the problem is this: the appellant appeared before a board of
referees under the Employment Insurance Act. He had
apparently been paid employment insurance benefits in the amount
of about $17,000. Subsequently it was decided that his employment
did not qualify. Originally it was thought that he had not been
employed at all and the CCRA demanded the return of the $17,000
plus the payment of penalties and interest bringing the total in
issue to about $41,000. Mr. Worsoff was successful in having
the penalties and interest dropped. However the $17,000 claim
remained.
[14] The
appeal to this court was the result of the following letter from
the CCRA dated January 23, 2001:
Dear Mr. Scarola:
This letter concerns your request for an appeal on the
insurability, for unemployment insurance purposes, of your
employment with Amado Leao, Proprietor, o/a Old Fashion Masonry,
for the period from August 10, 1992 to January 08, 1993.
It has been decided that the employment was insurable for the
following reason:
You were employed in insurable employment because you were
employed under a valid contract of service, as there was an
employee/employer relationship between yourself and Amado Leao,
Proprietor, o/a Old Fashion Masonry. However, this contract of
service was only valid for 18 weeks from August 10, 1992 to
December 11, 1992.
If you disagree with this decision, you may appeal to the Tax
Court of Canada within 90 days of the mailing date of this
letter. Details on how to initiate an appeal can be found on the
enclosed form entitled "How to Appeal to the Tax Court
of Canada".
The decision is this letter is issued pursuant to subsection
93(3) of the Employment Insurance Act and is based on paragraph
3(1)(a) of the Unemployment Insurance Act.
Yours sincerely,
[signed]
R.J. Barned
Team Leader
Appeals Division
for Minister of National Revenue
[15] The
remarkable series of on again off again letters from
Mr. Worsoff resulted from confusion on his part about the
number of weeks of insurable employment Mr. Scarola needed
to qualify for employment insurance benefits. On two occasions he
believed that he had enough and did not need to proceed with the
appeal before this court. As it turns out he needed 20 weeks
and the board of referees felt, in the absence of a decision of
this court, that the determination by the CCRA that he had worked
only 18 weeks was binding.
[16]
Mr. Scarola testified that he is confident that he can
establish that he worked 23 weeks. I express no conclusion
on this point beyond observing that I think he has an arguable
case.
[17] There are
two questions here:
(a)
Does this court have the power to set aside a withdrawal of an
appeal?
(b)
If so, on the facts of this case, should it do so?
[18] On the
first point the respondent has put forward a number of
authorities which counsel for the respondent says support the
view that once an appeal is withdrawn the court has no power to
set aside the withdrawal. Counsel confined his argument to the
proposition that the court had no "jurisdiction" to set
aside the notice of discontinuance. There is an unfortunate
tendency on the part of some lawyers in the Department of Justice
to argue, every time they want this court not to do something,
that it has no "jurisdiction". They toss around the
word "jurisdiction" with a sort of casual insouciance
that is devoid of precision or analysis.
[19] In
Laskaris v. M.N.R., [1990] T.C.J. No. 214, the
appellant's accountant withdrew a notice of appeal on the
basis of erroneous advice from Revenue Canada that the appeal was
premature because the processing of the notice of objection had
not been completed. The advice was wrong. 90 days had
elapsed from the date of filing the notice of objection and so
the appellant had a right to appeal.
[20] In any
event the withdrawal was sent to the Tax Court of Canada and on
the reverse side was a notation "Withdrawal of appeal
accepted - appeal dismissed". This notation was
initialled by the Chief Judge.
[21] A formal
judgment dismissing the appeal was issued. When the confirmation
of the assessment was received the appellant filed a new notice
of appeal. The Crown moved to quash the appeal and the motion was
granted on the basis that the court was functus officio,
since it had dismissed the appeal and the court was precluded by
subsection 171(1) of the Income Tax Act from
entertaining the new appeal.
[22]
Subsection 16.2(2) of the Tax Court of Canada Act
reads:
16.2(1)
A party who instituted a proceeding in the Court may, at any
time, discontinue that proceeding by written notice.
(2)
Where a proceeding is discontinued under subsection (1), it is
deemed to be dismissed as of the day on which the Court receives
the written notice.
[23] It is now
therefore unnecessary for the court to issue a formal judgment
dismissing the appeal. This section was put in the act following
the decision of the Federal Court of Appeal in McCambridge v.
The Queen, 79 DTC 5412.
[24] In
Baker v. R., [1999] 2 C.T.C. 2388, Bowie J. held
that the court had no power to set aside a notice of
discontinuance filed on behalf of a taxpayer by an agent. He
based his decision upon the implied authority that the agent has
to bind his client. He stated that the matter might be different
if the agent was simply a friend, professing no particular skill,
and assisting the appellant for no consideration. From this I
take it that Bowie J. did not consider that there was an
insuperable legal bar to the court's power to set aside a
withdrawal of an appeal and its consequential deemed dismissal
under subsection 16.2(2). Rather it seems clear that he was
of the view that the court had the power under some circumstances
to do so.
[25] In
Bogie v. The Queen, 97 DTC 1079,
Brulé J. said at page 1080
(3)
The Court, as a statutory creation, does not have the inherent
jurisdiction to set aside Notice of Discontinuance.
[26] With
respect I disagree with this view. Of course this court, like the
Federal Court of Canada, is created by a statute and derives its
jurisdiction from the statutes that confer that jurisdiction.
This has nothing to do with the court's power over its own
processes. This is a power that inheres in every court. It need
not be conferred specifically by a statute.
[27] In R.
v. Unnamed Person, [1985] O.J. No. 189,
Zuber J.A. said
The term "inherent jurisdiction" is one that is
commonly and not always accurately used when arguments are made
with respect to the jurisdictional basis upon which a court is
asked to make a particular order. The inherent jurisdiction of a
superior court is derived not from any statute or rule of law but
from the very nature of the court as a superior court (see,
generally, I.H. Jacob, The Inherent Jurisdiction of the Court,
1970, C. Leg. Probs. 23). Utilizing this power, superior courts,
to maintain their authority and to prevent their processes from
being obstructed or abused, have amongst other things punished
for contempt of court, stayed matters that are frivolous and
vexatious and regulated their own process. The limits of this
power are difficult to define with precision but cannot extend to
the creation of a new rule of substantive law.
[28]
Zuber J.A. was talking about a superior court but I do not
think it can be said that a court that does not happen to be
called a superior court does not have similar powers to control
and regulate it own processes. There is ample authority for the
proposition that this court has an inherent jurisdiction (or
power) to do all things necessary to carry out the jurisdiction
conferred on it under the various statutes granting a right of
appeal to it.
-
Yacyshyn v. The Queen, 99 DTC 5133
-
W. Lee v. M.N.R., [1991] 2 C.T.C. 344
-
Tibbits v. The Queen, [1995] 1 C.T.C. 2706
-
N.B. Electric Power Comm. v. Maritime Electric Co. Ltd.,
[1985] 2 F.C. 13
-
See also Daniele v. Johnson,
45 D.R. (3d) 498 (Ont. Divisional Court)
[29] These are
only a few of the cases that support the view that this court has
an inherent jurisdiction to do all things necessary to exercise
the jurisdiction specifically conferred. I am of course not
talking about the "inherent common law jurisdiction"
which Arnup J.A. discussed in Re Fraser and Pringle et
al., [1971] 19 D.L.R. (3d) 129, and in which
he adopted the dissenting judgment of O'Halloran J.A. of
the British Columbia Court of Appeal in Nanaimo Community
Hotel v. Board of Referees, [1945] 3 D.L.R. 225.
Although the judgment of the Ontario Court of Appeal was reversed
([1972] S.C.R. 821), Justice Arnup's discussion and
that of O'Halloran J.A. remain a valuable history of the
inherent common law jurisdiction of superior courts of the
province referred to in section 96 of the
Constitution Act (formerly the British North
America Act).
[30] It is
important that we recognize that the expression "inherent
jurisdiction" has different connotations in different
contexts. Arnup J.A. was using it in the broad sense of the
jurisdiction which the superior courts of the provinces in effect
inherited from the courts of common law and equity in England and
Ontario. Section 11 of the present Courts of Justice
Act of Ontario reads
(1)
The Ontario Court (General Division) is continued as a superior
court of record under the name Superior Court of Justice in
English and Cour supérieure de justice in French. 1996,
c.25, s. 9(3).
(2)
The Superior Court of Justice has all the jurisdiction, power and
authority historically exercised by courts of common law and
equity in England and Ontario.
[31]
Predecessors to the Courts of Justice Act, such as the
Judicature Act, defined the court's jurisdiction by
reference to December 31, 1912 when an earlier version of
the Judicature Act came into force which continued the
court's previous jurisdiction by reference to a number of
statutes such as
(a)
The jurisdiction exercised by England's superior courts of
common law (Queen's Bench, Common Pleas and Exchequer) on
December 5, 1859: R.S.O. 1897, c. 51, s. 25; C.S.U.C. 1859, c.
10, s. 3.
(b)
The jurisdiction exercised in certain enumerated matters by
England's Court of Chancery on March 4, 1837: R.S.O. 1897, c.
51, s. 26; (1837) 7 Wm. IV, c. 2, s. 2.
(c)
The jurisdiction exercised on June 10, 1857 by England's
Court of Chancery as a court of equity to administer justice
where no adequate remedy existed at law: R.S.O. 1897, c. 51, s.
28; (1857) 20 Vict., c. 56, s. 1.
(d)
The jurisdiction in respect of settled estates and minors'
estates exercised by England's Court of Chancery on March 18,
1865: R.S.O. 1897, c. 51, s. 37; (1865) 28 Vict., c. 17, s.1.
(e)
The equitable jurisdiction in matters of revenue exercised by
England's Court of Exchequer on March 18, 1865: R.S.O. 1897,
c. 51, s. 29; (1865) 28 Vict., c. 17, s. 2.
(f)
The jurisdiction exercised by Ontario's Courts of Queen's
Bench, Common Pleas, Chancery, Assize, Oyer and Terminer, and
Gaol Delivery on August 22, 1881: R.S.O. 1897, c. 51, s. 41; S.O.
1881, c. 5. s. 9.
[32] The above
is the common law jurisdiction customarily exercised by the
superior courts of the provinces. Although that jurisdiction is
in a sense conferred by statute its genesis historically was
independent of any statutory conferral.
[33] The
failure to distinguish between the inherent common law
jurisdiction of the superior courts of a province and the
inherent jurisdiction that every court has to regulate and
control its own processes — whether it be a superior court
or not or whether it be a section 96 or a section 101
court — may have led to the above observation made by
Brulé J. in Bogie or by Desjardins J.A.
in Tignish Auto Parts Inc. v. Minister of National
Revenue, 185 N.R. 73, where she said that the Tax
Court of Canada has no inherent jurisdiction because it is not a
superior court of record. Of course it does not have the
substantive residual jurisdiction in such matters as
mandamus, certiorari, prohibition and the other
extraordinary powers that superior courts of the province have
traditionally and inherently enjoyed and exercised. It is because
it is a court created under section 101 of the
Constitution Act and its substantive jurisdiction is
defined by statute, as is that of the Federal Court of Canada.
This is clear from the N.B. Electric Power Commission case
which held that the Federal Court did not have the inherent
jurisdiction enjoyed by superior courts of the province as
discussed by Estey J. in A.G. Can. v. Law Society of
B.C., [1982] 2 S.C.R. 307.
[34] It does
not follow that this court does not have an inherent jurisdiction
to control its own processes, or within the context of the
jurisdiction expressly conferred on it, to do what is necessary
effectively to exercise that jurisdiction. It is not really
necessary to use such expressions as "implied"
jurisdiction. There is nothing wrong with saying the court has
inherent jurisdiction provided we delineate just what the court
has inherent jurisdiction to do. It obviously does not have an
inherent jurisdiction to issue a writ of certiorari or
mandamus. It has an express jurisdiction to do what the
Income Tax Act or the Excise Tax Act says it can do
and it has an inherent jurisdiction (or, if one prefers to
restrict that expression to the residual common law jurisdiction
of provincial superior courts, implied) to control its own
processes in the context of the exercise of its express
jurisdiction.
[35] The
difficulty with the word "jurisdiction" is brought into
relief in the decision of the English Court of Appeal and of the
House of Lords in Anisminic, Ltd. v. The Foreign Compensation
Commission and Another, [1967] 2 All E.R. 986
(C.A.) reversed [1969] 2 A.C. 147 (H.L.).
[36] In the
Court of Appeal, Diplock L.J. stated at page 992
These cases abound with references to "error" and to
"jurisdiction", to "error of fact" and to
"error of law", to error "going to
jurisdiction" and to "error within jurisdiction";
and these expressions are not always used in the same sense in
one case as in another. We must, I think, go back to first
principles and start by analysing and defining our terms.
[37] At
page 994 he said
"Jurisdiction" is an expression which is used in a
variety of senses and takes its colour form its context. In the
present appeal, as in most of the authorities which have been
cited, we are concerned only with statutory jurisdiction in the
sense of an authority conferred by statute on a person to
determine, after inquiry into a case of a kind described in the
statute conferring that authority and submitted to him for
decision, whether or not there exists a situation, of a kind
described in the statute, the existence of which is a condition
precedent to a right or liability of an individual who is party
to the inquiry, to which effect will or may be given by the
executive branch of government.
[38] At
pages 995-996 he said
In the present appeal we are concerned with the
"jurisdiction" not only of a particular inferior
tribunal, the Foreign Compensation Commission, but also with that
of the High Court itself. The High Court too is the creation of
statute and its "jurisdiction" is statutory, although
the principal statute, the Supreme Court of Judicature
(Consolidation) Act, 1925, confers that jurisdiction in part by
reference to the jurisdiction formerly exercised by the courts of
common law before the Supreme Court of Judicature Act, 1875. In
relation to determinations of inferior tribunals the former court
of Queen's Bench exercised jurisdiction of two kinds. It was
the person whose opinion, whether the conditions limiting the
authority of the inferior tribunal to make a statement which
purported to be a determination were fulfilled, would be given
effect to: that is to say, it corrected "errors going to the
jurisdiction" of the inferior tribunal. It was also the
person to whose opinion about the legal consequences of
particular facts found to exist by the inferior tribunal effect
would be given in substitution for that of the inferior tribunal:
that is to say, it corrected "errors within
jurisdiction". In exercising its own jurisdiction to correct
"errors going to jurisdiction" of an inferior tribunal,
the court of Queen's Bench was making the first effective
statement whether or not particular facts existed which had the
legal consequences of fulfilling the conditions limiting the
authority of the inferior tribunal. It could therefore make its
own inquiry into the existence or non-existence of the particular
facts. It could correct "errors of fact" as well as
"errors of law" in the opinion formed by the inferior
tribunal as to whether or not the conditions limiting its
authority to make a determination were fulfilled. In exercising
its own jurisdiction, however, to correct "errors within
jurisdiction" of the inferior tribunal, the court of
Queen's Bench could only correct "errors of law",
because it was not the person to whose opinion about the
existence or non-existence of particular facts effect would be
given in substitution for that of the inferior tribunal.
Consequently, where the particular facts which in the opinion of
the inferior tribunal existed were not set out in the statement
of their determination but only the legal consequences of those
facts, the "errors of law", if any, could not be
detected by the court of Queen's Bench. It was only where the
particular facts were set out in the statement that that court
could form an opinion as to the correctness of the statement of
the inferior tribunal about the legal consequences of those
facts. It could correct only "errors of law on the face of
the record".
[39] In
reversing the Court of Appeal, Lord Reid in the House of
Lords said at page 171
It has sometimes been said that it is only where a tribunal acts
without jurisdiction that its decision is a nullity. But in such
cases the word "jurisdiction" has been used in a very
wide sense, and I have come to the conclusion that it is better
not to use the term except in the narrow and original sense of
the tribunal being entitled to enter on the inquiry in question.
But there are many cases where, although the tribunal had
jurisdiction to enter on the inquiry, it has done or failed to do
something in the course of the inquiry which is of such a nature
that its decision is a nullity. It may have given its decision in
bad faith. It may have made a decision which it had no power to
make. It may have failed in the course of the inquiry to comply
with the requirements of natural justice. It may in perfect good
faith have misconstrued the provisions giving it power to act so
that it failed to deal with the question remitted to it and
decided some question which was not remitted to it. It may have
refused to take into account something which it was required to
take into account. Or it may have based its decision on some
matter which, under the provisions setting it up, it had no right
to take into account. I do not intend this list to be exhaustive.
But if it decides a question remitted to it for decision without
committing any of these errors it is as much entitled to decide
that question wrongly as it is to decide it rightly. I understand
that some confusion has been caused by my having said in
Reg. v. Governor of Brixton Prison, Ex parte Armah
[1968] A.C. 192, 234 that if a tribunal has jurisdiction to go
right it has jurisdiction to go wrong. So it has, if one uses
"jurisdiction" in the narrow original sense. If it is
entitled to enter on the inquiry and does not do any of those
things which I have mentioned in the course of the proceedings,
then its decision is equally valid whether it is right or wrong
subject only to the power of the court in certain circumstances
to correct an error of law. I think that, if these views are
correct, the only case cited which was plainly wrongly decided is
Davies v. Price [1958] 1 W.L.R. 434. But in a
number of other cases some of the grounds of judgment are
questionable.
[40] I cite
these passages not because they are particularly germane to the
point I have to decide but because they illustrate the variety of
meanings that the word "jurisdiction" has and
consequently the extreme care that must be exercised when the
word is used.
[41] On the
appeal from Brulé J.'s judgment in Bogie,
Robertson J.A. in the Federal Court of Appeal,
98 DTC 6679, said
[1]
Assuming, without deciding, that the Tax Court of Canada
possesses the inherent jurisdiction to set aside a notice of
discontinuance or that the requisite jurisdiction arises under s.
172 of the Tax Court of Canada Rules, we are all of the view that
this appeal cannot succeed on its merits.
[42] This is
perhaps not the resounding support for what I have been saying
that I might have hoped for, but it leaves the door rather widely
ajar. It is of course consistent with what Lord Greene was
saying in Minister of National Revenue v. Wrights'
Canadian Ropes Ltd., 2 DTC 927 at
page 933.
On consideration of the reasons for judgment of the Supreme
Court their Lordships are of opinion that in allowing the appeal
it was intended to decide that the disallowances complained of
were to be set aside once and for all and that the reason for
referring the matter back to the Minister was merely to enable
him to adjust the assessments in accordance with this decision.
That, in the opinion of their Lordships, was the correct order to
make, but the reference back to the Minister for this purpose
could and should have been made under the inherent
jurisdiction of the Court and not under section 65(2). It
cannot be doubted that when the Court has answered a question
submitted to it in such a way as to necessitate a revision of the
assessment it has inherent jurisdiction to send the assessment
back for that purpose instead of being bound itself to make the
consequential alterations.
(emphasis added)
[43] Finally,
in Rutledge v. The Queen, 2001 DTC 65,
Bell J. said
[14] This
Court has the inherent jurisdiction to set aside a dismissal of
an appeal on the basis of erroneous advice, such dismissal not
have been created by a Judgment of this Court.
[44] I am in
complete and respectful agreement. This court clearly has
jurisdiction to set aside a notice of withdrawal.
[45] The
second question then is whether I should set aside the withdrawal
on the facts of this case. One must bear in mind that a denial of
the motion will redound to the detriment of Mr. Scarola, and
not his lawyer who, it should be noted, is taking
Mr. Scarola's case on a pro bono basis. If I were
to deny the motion there is, theoretically, a possibility that he
could sue his lawyer for negligence or for discontinuing his
appeal without specific instructions. It does not appear that
Mr. Scarola was fully apprised of the consequences of what
his lawyer was doing. He merely put the matter in
Mr. Worsoff's hands and left it to him to decide what
should be done. Nonetheless, the possibility of Mr. Scarola
suing his solicitor is not a practical alternative. Obviously I
have a discretion. In the exercise of that discretion, I do not
think that the conjectural possibility that a taxpayer who needs
a lawyer to take his case on a pro bono basis might be
able to sue the lawyer is a factor that should be taken into
account.
[46] This is
in my view a case where the relief sought should be granted. The
withdrawal was hasty and was based on confusion about the
requirements under the Employment Insurance Act. The
complexity of the Act and the rules and regulations under
it is compounded by the split jurisdiction under that Act
between this court and the Board of Referees. While I cannot
condone the lawyer's rash withdrawal of the appeal without
having his client's success with the Board of Referees
clearly nailed down his actions were carried out in good faith,
albeit rather inexpertly.
[47] In the
circumstances I am setting aside the notice of withdrawal and the
deemed dismissal and ordering that the appeal is validly before
the court.
[48] The
respondent has 60 days from the date of this order in which
to file a reply to the notice of appeal.
Signed at Ottawa, Canada, this 15th day of April 2002.
A.C.J.COURT FILE
NO.:
2001-550(EI)
STYLE OF
CAUSE:
Between Loreto Scarola and
The Minister of National Revenue
PLACE OF
HEARING:
Toronto, Ontario
DATE OF
HEARING:
March 21, 2002
REASONS FOR ORDER
BY:
The Honourable D.G.H. Bowman
Associate Chief Judge
DATE OF
ORDER:
April 15, 2002
APPEARANCES:
Counsel for the Appellant: Mitchell Worsoff, Esq.
Counsel for the
Respondent:
Brent Cuddy, Esq.
COUNSEL OF RECORD:
For the
Appellant:
Name:
Mitchell Worsoff, Esq.
Firm:
Worsoff, Silver
Toronto, Ontario
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-550(EI)
BETWEEN:
LORETO SCAROLA,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Motion heard on March 21, 2002 at Toronto,
Ontario, by
The Honourable D.G.H. Bowman, Associate Chief
Judge
Appearances
Counsel for the
Appellant:
Mitchell Worsoff, Esq.
Counsel for the Respondent: Brent
Cuddy, Esq.
ORDER
It is
ordered that the motion made by the appellant to set aside the
notice of withdrawal and the deemed dismissal of the appeal be
granted.
It is further ordered that the appeal is validly before the
court.
It is
further ordered that the respondent has 60 days from the date of
this order in which to file a reply to the notice of appeal.
Signed at Ottawa, Canada, this 15th day of April 2002.
A.C.J.
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