Citation: 2011 TCC 524
Date: 20111116
Docket: 2009-3634(IT)G
BETWEEN:
JACQUES POISSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR ORDER
D'Auray J.
[1]
The motion herein brought
by the respondent seeks under sections 64 and 68 of the Tax Court of Canada
Rules (General Procedure) (Rules) to have the appeal dismissed on
grounds of delay in that the appellant failed to prosecute his appeal with due
dispatch.
[2]
In support of the
motion, the deponent, Simon Vincent, alleges the following facts:
[Translation]
1.
On November 5, 2010, the appellant’s
representative wrote to the Court to request a stay of proceedings in this case
until the Court of Quebec rendered a judgment in file number 460-80-000609-097,
which was scheduled to be heard on April 29, 2011.
2.
The appellant’s representative thus committed to
having this file linked to the judgment rendered by the Court of Quebec.
3.
On July 15, 2011, the Court of Quebec rendered
judgment in file number 460-80-000609-097, dismissing the originating motion
of the plaintiff (the appellant herein).
4.
On July 25, 2011, the respondent was informed of
the judgment by counsel for the Deputy Minister of Revenue of Quebec.
5.
On July 28, 2011, the respondent tried
unsuccessfully to reach the appellant’s representative.
6.
On July 28, 2011 as well, the respondent’s
representative sent a letter to the appellant’s representative asking him to
inform him of his intentions with regard to prosecuting this file.
7.
On August 25, 2011, after several unsuccessful
attempts to reach the appellant’s representative, the respondent’s
representative sent him a second letter in which he reiterated the request of July
28, 2011.
8.
Each time the respondent’s representative attempted
to contact the appellant’s representative, he made sure that the appellant's
representative was not on vacation.
9.
The appellant’s representative never returned
the calls of the respondent’s representative or responded to his written
requests.
[3]
Counsel for the
appellant, Mr. Jodoin, did not appear at the hearing of the motion to
dismiss the appeal, on November 4, 2011, even though he had been duly served by
the respondent.
[4]
With regard to that, counsel
for the respondent indicated at the hearing that his colleague, Simon Vincent,
had received from the firm Robert Jodoin, Société d’avocats S.E.N.C.R.L., the
day before the hearing, namely, November 3, 2011, a letter stating the
following:
[Translation]
The above-referenced file has been set down for hearing this Friday,
November 4, at the Sherbrooke Courthouse.
Our client has not given us a mandate to contest your motion. His
financial situation is, unfortunately, very bad.
Sincerely,
ROBERT JODOIN, Société d’avocats S.E.N.C.R.L.
(s) Sylvain Lagüe,
Counsel
[5]
I have considered the affidavit
evidence in this case, which I have set out above, and the submissions of
counsel for the respondent at the hearing, reiterating the following facts
concerning the conduct of Mr. Jodoin:
-
He agreed that the outcome
of the federal file be linked to the judgment rendered by the Court of Quebec
in the provincial file, as shown by his letter dated November 5, 2010, sent to
the respondent and to this Court.
-
He did not send to the
respondent, as agreed, the judgment he had obtained from the Court of Quebec; instead,
the respondent received the Court of Quebec judgment from counsel for the Deputy
Minister of Revenue of Quebec.
-
He did not consider it
necessary to inform counsel for the respondent as to whether or not he intended
to prosecute the appeal herein following the Court of Quebec judgment—and this despite
the respondent's requests that he do so—until the day before the hearing of the
motion to dismiss the appeal. Counsel who was to appear for the respondent was
then already en route to Sherbrooke.
[6]
I have considered as
well the fact that Mr. Jodoin did not find it necessary to inform the Court
that he would not be appearing at the hearing of the motion.
[7]
I light of the
above-mentioned facts and affidavit evidence, the motion to dismiss the appeal
is granted.
[8]
Accordingly, the
appeals from the reassessments made under the Income Tax Act for the
2003 and 2004 taxation years are dismissed.
[9]
As to costs, counsel
for the respondent asks that I award an amount that is higher than that
provided for in the Tariff and that the costs awarded be paid by counsel for
the appellant. Counsel for the respondent relies for this on section 147 and
paragraph 152(1)(b) of the Rules and on this Court's decision in Dacosta.
[10]
The relevant parts of
sections 147 and 152 of the Rules read as follows:
147. (1) The Court may
determine the amount of the costs of all parties involved in any proceeding,
the allocation of those costs and the persons required to pay them.
(2) Costs may be awarded to or against the
Crown.
(3) In exercising its discretionary power
pursuant to subsection (1) the Court may consider,
(a) the result of the proceeding,
(b) the amounts in issue,
(c) the importance of the
issues,
(d) any offer of settlement made
in writing,
(e) the volume of work,
(f) the complexity of the
issues,
(g) the conduct of any party
that tended to shorten or to lengthen unnecessarily the duration of the
proceeding,
(h) the denial or the neglect or
refusal of any party to admit anything that should have been admitted,
(i) whether any stage in the
proceedings was,
(i) improper, vexatious, or unnecessary, or
(ii) taken through negligence, mistake or
excessive caution,
(j) any other matter relevant to
the question of costs.
(4) The Court may fix
all or part of the costs with or without reference to Schedule II, Tariff B
and, further, it may award a lump sum in lieu of or in addition to any taxed
costs.
. . .
152. (1) Where a
counsel for a party has caused costs to be incurred improperly or without
reasonable cause or to be wasted by undue delay, misconduct or other default,
the Court may make a direction,
(a) disallowing some or all of
the costs as between the counsel and the client,
(b) directing the counsel to
reimburse the client for any costs that the client has been ordered to pay to
any other party, and
(c) requiring the counsel to
indemnify any other party against costs payable by that party.
(2) A direction under subsection (1)
may be made by the Court on its own initiative or on the motion of any party to
the proceeding, but no such direction shall be made unless the counsel is
given a reasonable opportunity to make representations to the Court.
(3) The Court may direct that notice
of a direction against a counsel under subsection (1) be given to the client in
the manner specified in the direction.
[Emphasis added.]
[11]
The respondent also
argued that, if counsel for the appellant had honoured his commitments, he
would have forwarded the Court of Quebec judgment as contemplated. He would have
returned phone calls or responded to letters and would have advised the
respondent whether his client intended to proceed with the appeal or not.
[12]
Costs would have been
avoided because the respondent would not have had to continue managing the
file, to prepare the motion to dismiss the appeal or to appear before this
Court.
[13]
Under subsection 152(2)
of the Rules, before awarding costs as requested in this case, I must give
counsel for the appellant an opportunity to make representations.
[14]
Accordingly, further to
the respondent's request regarding costs under paragraph 152(1)(b)
of the Rules, I order counsel for the appellant to send me written
representations.
[15]
I also order counsel
for the respondent to send me written representations with respect to his
request regarding costs.
[16]
The written
representations from counsel for the appellant and counsel for the respondent
must be received within 60 days of the signature of the order.
[17]
Accordingly, I defer my
decision on costs.
Signed at Ottawa, Canada, this
16th day of November 2011.
"Johanne D’Auray"
on this 22nd day
of December 2011.
Erich Klein,
Revisor
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