Docket: 2006-1322(IT)G
BETWEEN:
1314420 ONTARIO LTD.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Motion heard on August 2, 2006 at Welland, Ontario
Before: The Honourable
Justice G. Sheridan
Appearances:
|
For the Appellant:
|
No
one appeared
|
|
|
|
|
Counsel for the Respondent:
|
George Boyd Aitken
|
____________________________________________________________________
ORDER
Upon motion by the Respondent for an Order pursuant to paragraph 58(1)(b)
of the Tax Court of Canada Rules (General Procedure) to strike out the
Notice of Appeal for the 2000 taxation year;
And having heard the submissions of counsel for the
Respondent and having read the materials filed;
And upon no one having appeared, nor any materials
having been filed on behalf of the Appellant;
IT IS ORDERED:
1. pursuant to subsection 30(2)
of the Tax Court of Canada Rules (General Procedure), the Appellant
shall have 30 days from the date of this order to retain counsel and to notify
the Court and counsel for the Respondent in writing of the name and address for
service of its counsel, together with telephone and fax numbers; or
alternatively, within 15 days of the date of this order, to seek leave of the
Court to be represented by one of its officers, such motion to be brought
before me on a peremptory basis;
2. in the event of the Appellant's
failure to comply with the terms of this order, the Respondent may renew its
motion for the alternative relief sought, such motion to be brought back before
me on a peremptory basis; and
3. the Appellant shall pay to the
Respondent its costs of this motion, in any event of the cause
in
accordance with the attached Reasons for Order.
Signed at Ottawa, Canada, this 6th day of September, 2006.
"G. Sheridan"
Citation: 2006TCC490
Date: 20060906
Docket: 2006-1322(IT)G
BETWEEN:
1314420 ONTARIO LTD.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Sheridan, J.
[1] The Respondent's
Motion Record sets out the orders sought and the grounds relied upon as
follows:
The motion is for:
(a) an Order striking out the
Notice of Appeal, filed with the Tax Court of Canada on February 1, 2006,
pursuant to paragraph 58(1)(b) of the Tax Court of Canada Rules (General
Procedure);
(b) in the alternative, an Order
requiring the Appellant to deliver particulars within a specified time pursuant
to section 52 of the Tax Court of Canada Rules (General Procedure);
(c) in the alternative, an Order
pursuant to section 26 of the Tax Court of Canada Rules (General Procedure)
consolidating the present appeal with the appeal filed by the Appellant in Tax
Court File Number 2006-1323(IT)I;
(d) in the further alternative, an
Order extending the time allowed for the Respondent to file its Reply to the
Notice of Appeal pursuant to paragraph 44(1)(b) of the Tax Court of
Canada Rules (General Procedure);
(e) an Order requiring the Appellant
to comply with subsection 30(2) of the Tax Court of Canada Rules
(General Procedure); and thereby be represented by counsel or seek leave of
the Court to be represented by an officer of the Appellant;
(f) costs in any event of the
cause; and
(g) such further and other relief
as this Honourable Court deems just.
The grounds for the Motion are:
(a) the Notice of Appeal discloses
no reasonable grounds for appeal as, at best, it raises a decided question of
law under subsection 152(7) of the Income Tax Act;
(b) the Appellant has failed to
supply particulars to the Respondent in spite of the Respondent's Demand for
Particulars which Demand for Particulars was served on the Appellant on June
30, 2006;
(c) the Notice of Appeal as filed
does not provide sufficient particulars upon which the Respondent may rely in
order to prepare its Reply to the Notice of Appeal; and
(d) the present appeal and the
appeal filed by the Appellant in Tax Court File Number 2006-1323(IT)I
disclose common questions of fact and law. It would be reasonable in the
circumstances that the matters be consolidated or heard together on common
evidence.
[2] This motion was set down for hearing at Welland, Ontario on August 2, 2006. On
August 1, 2006, prior to the hearing of another matter, counsel for the
Respondent advised the Court that it was his understanding the Appellant would
be seeking an adjournment, apparently because of certain health problems being
experienced by the Appellant’s accountant, Mr. Bill Haskin, the individual who
(again, apparently) was to represent the Appellant at the hearing of the
Respondent's motion. Upon further questioning from the Court, counsel for the
Respondent further advised that he was not aware of any formal request for
adjournment having been made to the Court.
[3] As counsel for the Respondent anticipated further
communication with Mr. Haskin later in the day, he was instructed by the
Court to inform him that if he planned to seek an adjournment of the motion set
for the following day, he was required to make such a request in writing
together with proof of the medical appointment (apparently) preventing him from
attending on behalf of the Appellant on August 2, 2006. After a short recess,
counsel for the Respondent informed the Court that he had spoken to Mr. Haskin
who had advised he would "try" to get the necessary document to
Ottawa and confirmed that Mr. Bobby Cosby was "not available" on
August 2, 2006. Although initially not opposed to the Appellant’s apparent
request for an adjournment if supported by proof in writing of medical problems
affecting Mr. Haskin's ability to appear, as the day wore on, counsel for the
Respondent took the position that the Respondent would prefer to proceed with
the motion as scheduled.
[4] On August 2, 2006, the Respondent’s motion was called
for hearing. No one appeared for the
Appellant. Giving the Appellant the benefit of the doubt, the Court placed the Respondent's
motion at the end of the day's list. Before calling the case for a second time following
the completion of all other matters, a recess was called and it was verified
that nothing had been received from the Appellant at the Registry office in Ottawa. Accordingly,
the Respondent's motion was heard in the Appellant's absence[2].
[5] After reviewing
the deficiencies in the drafting of the Notice of Appeal and in the Appellant's
response to the Respondent's Demand for Particulars, counsel for the Respondent
submitted that the Minister was justified in seeking to have the Notice of
Appeal struck out under paragraph 58(1)(b) of the Tax Court of Canada
Rules (General Procedure). Paragraph 58(1)(b) reads:
...
(b) to stike out a pleading because it discloses no reasonable
grounds for appeal or for opposing the appeal,
[6] He noted as well
that the Appellant's lack of representation by counsel was in breach of
subsection 30(2) of the Tax Court of Canada Rules (General Procedure).
Subsection 30(2) reads:
Representation
of Person or Corporation by Counsel
...
(2) A corporation shall be represented by counsel in all
proceedings in the Court, unless the Court, in special circumstances, grants
leave to the corporation to be represented by an officer of the corporation.
[7] Recognizing the
principle that justice is better served by the taxpayer having its day in Court
and positing that the Appellant's lack of legal representation might account
for the state of its pleadings, counsel for the Respondent suggested that an
order compelling the Appellant to comply with subsection 30(2) might result in remedying
many of the deficiencies addressed in the Respondent's motion. I am persuaded
by counsel's imminently fair proposal, one which is in keeping with the
approach set out in the case law:
The governing
test for dismissing an action or striking out a claim as disclosing no
reasonable cause of action is a difficult one to meet. Our Courts are rightly
reluctant to snuff out potentially meritorious actions prematurely. We try to
err on the side of giving each person a day in court, striking out claims only
in the plainest and most obvious cases. As Mr. Justice Estey wrote for the
Supreme Court of Canada in Canada (Attorney General) v. Inuit
Tapirisat of Canada et al., [1980] 2 S.C.R. 735 at page 740:
On a motion
such as this a court should, of course, dismiss the action or strike out any
claim made by the plaintiff only in plain and obvious cases and where the court
is satisfied that "the case is beyond doubt". [Emphasis added.][3]
[8] There is nothing
in these words, however, to relieve the Appellant of its obligations to
prosecute its appeal in a timely and responsible manner in accordance with the Tax
Court of Canada Rules (General Procedure). And there is certainly nothing entitling
the Appellant to disregard an order of this Court setting the Respondent's
motion down for hearing. The inattention and inaction of those purporting to
represent the Appellant, Mr. Haskin and Mr. Cosby, wasted the time and/or
resources of the Court, counsel for the Respondent and the taxpayers of Canada.
Accordingly, the Appellant shall pay to the Respondent its costs of this
motion, in any event of the cause.
[9] Accordingly, it is ordered that:
1. pursuant
to subsection 30(2) of the Tax Court of Canada Rules (General Procedure),
the Appellant shall have 30 days from the date of this order to retain counsel
and to notify the Court and counsel for the Respondent in writing of the name
and address for service of its counsel, together with telephone and fax
numbers; or alternatively, within 15 days of the date of this order, to seek
leave of the Court to be represented by one of its officers, such motion to be
brought before me on a peremptory basis;
2. in the event of the Appellant's
failure to comply with the terms of this order, the Respondent may renew its
motion for the alternative relief sought, such motion to be brought back before
me on a peremptory basis; and
3. the Appellant shall pay to the
Respondent its costs of this motion, in any event of the cause
Signed at Ottawa, Canada,
this 6th day of September, 2006.
"G. Sheridan"
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