Citation: 2008TCC281
Date: 20080508
Docket: 2006‑1823(IT)G
BETWEEN:
LUCIE DESPOT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Jorré J.
[1] On the 29th day of
February 2008, this Court ordered that:
1. the Appellant produce and serve on the Respondent, no later than
April 4, 2008, a list of documents in accordance with section 81
of the Tax Court of Canada Rules (General Procedure);
2. the Appellant respond to the undertakings arising out of the
examinations for discovery, no later than April 4, 2008, and produce
a copy of her response to the undertakings no later than
April 4, 2008;
3. the Appellant pay the Respondent's costs of the motion, regardless
of the outcome of the case, costs being fixed at $1,000 and payable to the
Respondent by certified cheque no later than April 4, 2008;
4. the Appellant file proof of payment of the Respondent's costs with
the Registry of the Court no later than April 16, 2008.
The dates set are peremptory. If the
Appellant fails to comply with this Order, the appeal will be dismissed without
further notice or motion for dismissal of the appeal.
The Reasons for Order were also
signed on February 29, 2008.
[2] Following the Order
of February 29, 2008, the Appellant paid the Respondent’s costs, but did not produce a list of
documents in accordance with section 81 of the Tax Court of Canada
Rules (General Procedure).
The Appellant did not comply with the undertakings arising out of the
examinations for discovery, and did not produce a copy of her answers to
the undertakings.
[3] Even if I disregard
the Appellant's failure to produce a list of documents in accordance with the
Rules, the Appellant has not complied with the Order because she has not
responded to the undertakings arising out of the examinations for discovery or
produced a copy of her answer to the undertakings. As a result, the appeal is
still not moving forward.
[4] The Order of February 29, 2008, provided that the
appeal would be dismissed if the Appellant did not comply with the said Order.
[5] It would not be in
the interests of justice to derogate from this warning. Consequently, the
appeal is dismissed.
Signed at Ottawa, Canada, this
8th day of May 2008.
"Gaston Jorré"
Translation certified true
on this 12th day of June 2008.
Brian McCordick, Translator
APPENDIX
Citation: 2008TCC127
Date: 20080229
Docket: 2006‑1823(IT)G
BETWEEN:
LUCIE DESPOT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Jorré J.
[1]
This is a motion by the
Respondent for dismissal of the appeal, (i) for failure by the Appellant
to prosecute the appeal with due dispatch, and (ii) for failure by the
Appellant to comply with an order of the Court.
[2]
The hearing of this
motion, which the Appellant did not attend, was held on
February 19, 2008. The Appellant sent a request for an adjournment by
electronic means, which I denied at the hearing.
[3]
The Appellant filed a
motion to extend the time for filing her appeal, with a notice of appeal, in
June 2006. The Respondent did not object and an order extending the time
was signed on October 6, 2006.
[4]
On April 23, 2007, the
Court Registry wrote to the parties inviting them to propose a timetable for
the various steps in the case.
[5]
On May 23, 2007, counsel for the Respondent replied to the Registry. In
his letter, he said he had contacted the Appellant on three occasions to agree
to a timetable, but had received no reply from her; he proposed dates for the
various steps.
[6]
On May 25, 2007,
the Registry wrote to the Appellant asking her to submit comments before June 15, 2007.
[7]
The Appellant did not
reply to the letter from the Registry, and by Order dated
June 18, 2007, this Court set the timetable for the next steps in the
case.
[8]
The Respondent filed
and served her list of documents within the time allowed by the Order of June 18, 2007. The Appellant did not file her list and the Court
set a date for a case management hearing, August 14, 2007.
[9]
Following up on the
hearing on August 14, 2007, the Court made an Order on
August 22, 2007. The Order extended the time for completing the
preliminary steps before the hearing of this case. The order set the following
deadlines for completing the preliminary steps:
- September 28, 2007, for filing the list of documents and serving it on
the other party;
- November 30, 2007, for
completing the examinations for discovery;
- December 31, 2007, for complying with undertakings arising
out of the examinations for discovery;
- January 30, 2008, for
communicating in writing with the Hearings Coordinator.
[10]
The Respondent filed
her list of documents in accordance with the Order.
[11]
The Appellant filed a
list of documents on September 28, 2007, but the list of documents was not in
compliance with the Tax Court of Canada Rules (General Procedure). It
was also not signed by the Appellant or her counsel of record.
[12]
On October 4,
2007, the Court Registry wrote to Alain Le Bris, with a copy to the
Appellant, confirming that the Registry had received a list of documents. In
the letter, the Registry also stated that the list was not signed by the
Appellant and that Mr. Le Bris was not the representative on the
record and could not be the representative. The Court therefore concluded, in
its letter of October 4, that it was still waiting for the list of
documents, signed by the Appellant.
[13]
By letter dated October 30, 2007, the Court Registry informed the Appellant that the
list of documents had not been signed by the Appellant or her counsel. In the
letter, the Appellant was also informed that because the Order of the Court had
set September 28, 2007, as the date for filing the list of documents,
the Appellant would have to file a motion with the Court asking for the
timetable to be amended.
[14]
The Respondent examined
the Appellant for discovery on November 8, 2007, and at that examination the Appellant
gave several undertakings, which are listed in Exhibit R‑1 to the
sworn statement filed in support of the notice of motion. On
November 23, 2007, counsel for the Respondent wrote to the Appellant
enclosing a copy of the list of undertakings. He also reminded her of the
deadline for responding to the undertakings, December 31, 2007. As of the date of the sworn statement,
January 17, 2008, the Appellant had not responded to the
undertakings.
[15]
The Appellant wrote a
letter to counsel for the Respondent on December 31, 2007 (Exhibit R‑2 to the sworn
statement filed in support of the motion). The letter seems to cast doubt over
the undertakings given by the Appellant. She concludes by saying:
[TRANSLATION]
For all these reasons, I suggest, in order to bring this examination
to a conclusion, that we meet with Alain Le Bris at the accountant’s,
because as you know I had absolutely nothing to do with those reports.
Mr. Le Bris will telephone you next week to make an
appointment with you so that we can finish with this matter.
[16]
The Appellant has not
prosecuted her appeal with due dispatch, and she did not comply with the Order
made on August 22, 2007.
[17]
On examining the Reply
to the Notice of Appeal, we see that there are significant amounts of money in
issue.
[18]
In the circumstances,
it would not be appropriate simply to dismiss the appeal. However, having
regard to the Appellant’s conduct, measures need to be taken to move forward on
this case.
Accordingly, the Court orders that:
1. the Appellant produce
and serve on the Respondent, no later than April 4, 2008, a list of documents in accordance with
section 81 of the Tax Court of Canada Rules (General Procedure);
2. the Appellant respond to the
undertakings arising out of the examinations for discovery, no later than
April 4, 2008, and produce a copy of her response to the undertakings
no later than April 4, 2008;
3. the Appellant pay the
Respondent’s costs of the motion, regardless of the outcome of the case, costs
being fixed at $1,000 and payable to the Respondent by certified cheque no
later than April 4, 2008;
4. the Appellant file
proof of payment of the Respondent’s costs with the Registry of the Court no
later than April 16, 2008.
The dates set are peremptory.
If the Appellant fails to comply with this Order, the appeal will be dismissed
without further notice or motion for dismissal of the appeal.
Signed at Ottawa, Canada, this 29th day of February 2008.
"Gaston Jorré"
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