Citation: 2005TCC624
Date: 20050923
Docket: 2003-1866(IT)G
BETWEEN:
GARY ALLAN RAYMOND,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Beaubier, J.
[1] This motion by the Respondent to dismiss this appeal was dated July 19, 2005. It was heard July 27, 2005 and on July 28, 2005, by consent of both counsel, this Court ordered in paragraphs 1, 2 and 4 that:
1. The Appellant shall provide the Respondent with copies of all his listed documents by August 31, 2005.
2. The Appellant shall provide the Respondent with complete responses to each of his undertakings given at discovery by August 31, 2005.
4. If the Appellant fails to comply with any of terms 1, 2 or 3 set out above, his appeal shall be dismissed.
[2] By telephone conference on September 6, 2005, the Respondent's counsel stated that paragraph 2 had not been complied with. Because the result would be a dismissal, the Court ordered that affidavits be filed and the matter was heard in Vancouver on September 19, 2005.
[3] The Appellant gave an undertaking in examination for discovery on February 28, 2005 to "provide all documents supporting what you say are expenses you incurred respecting all rental properties in 1995 through 2000."
[4] The Appellant states that he prepared a ledger book for each year in April, 2005. Some figures were based on receipts, some on old "handwritten pieces of paper" and some were based on recollection of what the expenses probably were.
[5] The Appellant then threw away the "handwritten pieces of paper", (paragraph 11, and see paragraph 12).
[6] The ledger book or "summary" was delivered by the Appellant to a chartered accountant, Mr. Hogan, who prepared a statement from it, pursuant to this Court's order of July 28, 2005. That was finished and delivered to Respondent's counsel on August 31, 2005 without the ledger book or "summary".
[7] Thus, Respondent's counsel did not receive "all documents supporting" and asked for dismissal on September 19, 2005.
[8] The history of orders in this file is:
June 25, 2004, O'Connor, J.
Status Hearing Order - list of documents August 21, 2004, examination for discovery September 30, 2004.
October 5, 2004, Garon, C.J., by agreement of both counsel,
Examination for discovery extended to October 31, 2004.
October 29, 2004, Bowman, A.C.J., by agreement of both counsel,
Examinations for discovery further extended to December 17, 2004.
[9] Since October 29, 2004 a further extension for examinations for discovery to April 30, 2005 and of undertakings to May 31, 2005, again by consent of both counsel.
[10] All of this arises from assessments because the Appellant, a renter and seller of properties, did not file income tax returns for 1995, 1996, 1997, 1998, 1999 and 2000. He did so before then, so he knew what his duties were. He represented himself at the outset of this appeal. He has now retained his lawyer for the second time on the record.
[11] Respondent's counsel did not emphasize the Appellant's destruction of his "handwritten pieces of paper" which in the history of this matter is amazing. Rather he emphasized the failure to provide the "summary", a photocopy of which is now exhibited and which shows numerous "corrections" - a field day for cross-examination. The failure to provide the "summary" occurred when the Appellant's accountant did not deliver it to the Appellant's lawyer. The failure was apparently discovered when Respondent's counsel phoned the accountant to discover where the accountant's figures came from and learned of the "summary". In the Court's view that failure may have occurred because the accountant did not understand the need to deliver the "summary" which was made up by the Appellant after the examination for discovery of February 28, 2005.
[12] Thus, there is a plausible set of occurrences and intervening parties which, together cause this Court to fail to find that the Appellant himself withheld the "summary" deliberately and intentionally.
[13] The Court might be inclined to find otherwise respecting the Appellant's destruction of his "handwritten pieces of paper" depending on the evidence respecting that, but that is not in issue.
[14] The result is that the Court cannot find a sufficient basis on which to dismiss this appeal for abuse of process pursuant to paragraph 91(1)(c) of the General Procedure Rules.
[12] Costs are in the cause.
Signed at Vancouver, British Columbia, this 23rd day of September 2005.
"D.W. Beaubier"
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