Docket: 2005-651(IT)I
2007-364(IT)I
BETWEEN:
GILBERT IGNATIUS McINTYRE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
The Honourable
Justice Campbell J. Miller
____________________________________________________________________
ORDER
UPON application by the Appellant requesting
that the Judgment dated November 7, 2007 dismissing his appeals be set aside;
IT IS ORDERED THAT the Appellant’s
application is dismissed and the Judgment dated November 7, 2007 stands in
accordance with the attached Reasons for Order.
Signed at Ottawa, Canada, this 17th day of December, 2007.
“Campbell J. Miller”
Citation: 2007TCC756
Date: 20071217
Docket: 2005-651(IT)I
2007-364(IT)I
BETWEEN:
GILBERT IGNATIUS McINTYRE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Miller J.
[1] Mr. McIntyre seeks
to have an Order for dismissal set aside pursuant to subsections 18.21(1), (2)
and (3) of the Tax Court of Canada Act. I had ordered his appeals
dismissed when he did not appear in Court at his scheduled trial date of
October 31, 2007. Mr. McIntyre has provided me with no further information to
support setting aside my order than he had provided prior to October 31, 2007.
[2] These matters have
quite a history. The case was originally set to be heard on August 10, 2005
which was adjourned to February 7, 2006. Mr. McIntyre sought another
adjournment on February 7, 2006 but I asked the Respondent and Mr. McIntyre to
appear on February 7th so we could discuss the future handling of
this matter. Mr. McIntyre did not appear and I dismissed his appeal. He brought
an application to have that order set aside, but notwithstanding requests from
the Court, he did not provide any additional information as to why he did not
attend in February until July 2006, when he provided some further information
from some physicians concerning his medical problems. This included a letter
confirming that he was advised on February 1, 2006 by his doctor to rest for a
few days. On this basis I allowed his application and set a new hearing date of
October 10, 2006 on a peremptory basis.
[3] On October 10, 2006
the Appellant started to give his evidence but it became clear to me that he did
not have the vital documents which would assist me in determining the
deductibility of child support payments. I adjourned the matter to April 5,
2007 to allow time to obtain the necessary evidence (court orders and proof of
payments).
[4] On April 5, 2007
Mr. McIntyre arrived late and sought an adjournment on the basis that he had
been ill. He did however provide some documents confirming some payments, but
provided no copies of court orders. I again adjourned the matter and asked the
Respondent to assist in tracking down the court orders that dealt with the
child support payments. A continuation of the trial was set for October 31,
2007.
[5] In August, Mr.
McIntyre again sought an adjournment for medical reasons, being that surgery
had been scheduled for September 11, 2007. I denied the request, but suggested
to Mr. McIntyre that he renew his request in early October, presumably after
the surgery. The Court received a letter from Dr. Ismail dated October 29, 2007
which reads:
TO WHOM IT MAY CONCERN
Re: Gilbert McIntyre
Date of Birth: August 1, 1941
Mr. McIntyre has been under my care for
essential hypertension, diabetes Type II, carcinoma of the prostate, macular
degeneration of the retina, osteoarthritis of his knees, degenerative disc
disease of the spine and psoriasis.
He is on several medications including
Norvasc 10 mg, Dimicron MR 30Mg, Diovan HC, Zocor, Altace and ASA.
Mr. McIntyre underwent a prostate biopsy
in May 2007, and feels very depressed and dejected since he has known his
biopsy result.
He is being followed at Sunnybrook Cancer
Centre and is scheduled to see Dr. Baral, Psychiatrist at St. Michael’s to
help him cope with his severe depression.
S.H. Ismail
Family Physician
October 29, 2007
[6] I did not grant an
adjournment. The letter made no mention of any surgery in September, or
anything that related specifically to Mr. McIntyre’s inability to appear on
October 31, 2007. He indeed did not show up on October 31, 2007.
[7] On October 31, 2007
Mr. Bartleman for the Respondent applied to have the matter dismissed, but also
advised the Court that he had obtained the relevant court orders with respect
to Mr. McIntyre’s child support payments and wished to amend the Reply. A court
order dated January 22, 1998 clearly established a commencement date that would
render Mr. McIntyre’s child support payments non-deductible. I allowed the
amendment and then, after considerable representations from Mr. Bartleman, I
dismissed Mr. McIntyre’s appeals for non appearance.
[8] As is clear from
the transcript, this decision was not made without consideration of possible
alternative approaches to Mr. McIntyre’s appeal, but for the reasons given at
that time I was convinced dismissal was in order.
[9] For Mr. McIntyre to
successfully get this dismissal set aside he must, in accordance with
subsection 18.21(3) of the Tax Court of Canada Act satisfy me that it
would have been unreasonable in all the circumstances to have attended on
October 31, 2007. He has not convinced me on that score, as he has relied
solely on two letters from physicians which the Court had already received
prior to October 31, 2007, Dr. Ismail’s letter cited earlier being one of them.
While I have sympathy for someone suffering the medical woes that Mr. McIntyre
suffers the letters do not address specifically his condition on October 31st.
He was not a well man, I accept that, but without intending to be too harsh, he
was not described as recuperating from surgery, or being advised to stay in
bed, or being hospitalized.
[10] Had I found that his
medical condition did truly prevent him from appearing (which I have not found)
it is still within my discretion whether or not to set aside the dismissal and
I would still have set it aside. The Appellant has been given every opportunity
to bring forward materials to support his case. He has not done so. The
Respondent has indeed made the effort to track down the documents that might
have supported Mr. McIntyre’s position. As it turned out, they do not. Given
the several delays, the concessions already made to accommodate him, the
failure to provide materials that should have been in his possession and the
most likely outcome of these appeals in the circumstances, it would serve no
purpose to allow this matter to continue.
[11] For these reasons, I
dismiss Mr. McIntyre’s application to set aside the judgment of November 7,
2007.
Signed at Ottawa, Canada, this 17th day of December, 2007.
“Campbell J. Miller”
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