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Docket: 97‑333(UI)
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BETWEEN:
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ÉRIC DUCHESNE
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Appellant,
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and
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THE MINISTER OF NATIONAL REVENUE,
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Respondent.
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____________________________________________________________________
Motion in revocation of judgment
heard on March 22, 2004, at Chicoutimi, Quebec
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Before: The
Honourable Justice François Angers
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Appearances:
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For the
Appellant:
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The
Appellant Himself
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Counsel for the
Respondent:
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Sylvain Ouimet
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____________________________________________________________________
JUDGMENT
Upon motion by the Appellant for a
revocation of a judgment rendered on October 7, 2003;
Considering that, in the
circumstances, it was unreasonable to expect the Applicant (Appellant) to
attend the hearing;
The judgment dismissing the appeal filed by the Applicant,
rendered October 7, 2003, is quashed.
Signed at Ottawa, Canada, this 30th day of April 2004.
Angers J.
Translation certified true
on this 26th day of October 2004.
Ingrid B. Miranda, Translator
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Citation: 2004TCC304
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Date: 20040430
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Docket: 97-333(UI)
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BETWEEN:
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ÉRIC DUCHESNE
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Appellant,
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and
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MINISTER OF NATIONAL REVENUE,
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Respondent.
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[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Angers J.
[1] This
is a motion in revocation of a judgment rendered by the Tax Court of Canada on
July 7, 2003. The judgment granted Counsel for the Applicant
permission to be removed as Counsel of record, and dismissed the appeal of the
Applicant on the ground that he did not come to Court the morning his case was
to be heard, on July 2, 2003, at Roberval, Quebec. A related case was to be heard the same day, relating to the
father of the Applicant, Berthold Duchesne. The Applicant and his father
were both represented by the same Counsel. On June 27, 2003,
Counsel sought to adjourn both files. On June 30, he was informed that
only the father’s case has been adjourned for medical reasons. Therefore, on
the morning of the hearing, the attorney reiterated his request for an
adjournment respecting the Appellant’s case, but his request was rejected by
the judge presiding at the hearing.
[2] That
same morning, the attorney attended the hearing alone, without his clients or
witnesses, in spite of the fact that he had received a copy of the order
directing that the hearing be heard on July 2, 2003. The order was
dated May 13, 2003, and was served with the attorney on
June 30, 2003, informing him that his petition to adjourn was
rejected.
[3] Counsel
explained the absence of his clients and witnesses to the trial judge.
Following these explanations, the judge concluded that the Applicant had no
interest in his case and that Counsel had not received his client's support in
preparing his appeal. The lawyer affirmed that he had sent a letter to his
clients one month prior to July 2, 2003, asking them to contact him.
Berthold Duchesne contacted the lawyer, since one of the adjournments was
granted for medical reasons. The lawyer also called the Applicant several
times, but to no avail. When his request for an adjournment was rejected on the
morning of July 2, 2003, he also tried to contact his client again:
he informed the Court that he was unable to reach his client, but that he left
a message on his answering machine. He made this last effort in order to proceed
with the hearing of the case the next morning, on July 3. It is worth
noting that the Respondent's witnesses were not present either on the morning
of July 2, 2003, knowing that the adjournment had been rejected on
June 30, 2003.
[4] The
Applicant and his mother, Diane Gaudreau, attended at the hearing before
me and they both testified under oath. The message left by the lawyer on
July 2, 2003, was in fact left on Ms. Gaudreau’s answering
machine. The Applicant does not reside with his mother. Ms. Gaudreau
is simply a potential witness in the case, in her capacity as Employer. She is
separated from and has not lived with Berthold Duchesne for six years. She
heard the message during the day on July 2, and the next morning went,
with the Applicant, to the Courthouse in Roberval at 9:30a.m. They returned on
July 4, 2003. Following the advice of the registrar, the Applicant
initiated these proceedings.
[5] According
to Ms. Gaudreau and the Applicant, Berthold Duchesne retained the
services of the attorney to represent him and his son. Ms. Gaudreau stated
that she was never informed that the hearing was scheduled for
July 2, 2003. In fact, she received the first call from the
lawyer about this matter on July 2. She testified that it was impossible
for the Applicant to receive any messages because his telephone was not
equipped to do so. Moreover, she informed the Court that her son had always
lived at 2264 rang 3 west, Métabetchouan and that, if the
lawyer had sent a letter to the Applicant, he had used Berthold’s address at
164 St‑Georges Street, Métabetchouan, the same address
where he mailed his invoice on July 18, 2003. She also confirmed that
during the time at issue, Berthold was in fact in the hospital.
[6] The
Applicant confirmed his mother’s testimony. According to him, his lawyer had
already represented him in another proceeding and he should have known his
address and telephone number. He claims he did not receive any letter or
telephone call. Once his mother reached him on July 2, 2003, the
Applicant came to the Roberval Courthouse with his mother on the mornings of
July 3 and 4, 2003.
[7] Paragraphs 18.21(3)(a) and (b)
of the Tax Court of Canada Act prescribe two
conditions for the granting of a motion in revocation of judgment: the
application had to be filed as soon as circumstances permitted within
180 days; and that it would have been unreasonable in all the
circumstances for the Applicant (appellant) to have attended the hearing.
[8] There
is no doubt in the case at bar that we are facing significantly inconsistent
explanations, to say the least. Counsel for the Applicant did not testify at
the hearing of this motion: I read his account of facts from the Reasons for
Judgment related to the hearing that took place on July 2, 2003. It
is therefore impossible for me to compare his account of facts with that of the
Applicant or the mother and to make a determination. I will simply try to
understand how something like this could happen in 2004, with all the very
sophisticated means of communication that we now have. Here are the background
facts that I am retaining:
1 – The notice of
hearing was sent on May 13, 2003, peremptorily setting the
hearing date at July 2, 2003, in the Roberval Courthouse.
2 - At the time,
Berthold Duchesne was in the hospital.
3 - The doctor
confirmed that on June 23, 2003, Berthold was hospitalized for
depression.
4 - Counsel for the
Appellants filed an application for adjournment for both cases on
June 27, 2003.
5 - The Respondent
did not object.
6 - On
June 30, 2003, the hearing coordinator informed the parties that only
the adjournment of Berthold Duchesne’s case was allowed and that the
parties should be ready to proceed with the hearing scheduled for
July 2 and 3, 2003.
7 - The lawyers for
both parties came to Court on the morning of July 2, 2003. Counsel
for the Appellant was there without his client or witnesses, and Counsel for
the Respondent was there without his witnesses.
[9] In
light of the last fact, it seems obvious to me that both lawyers involved in
the case were clearly under the impression that the Court would agree to
adjourn the Applicant’s case, without making that request. In some
circumstances, both could have seriously endangered the case of their
respective clients, since if the Court refuses to grant an adjournment, Counsel
would have found themselves with no means of presenting evidence, without
witnesses and without clients. This is exactly what happened here. In my
opinion, this situation is absolutely unacceptable if one considers the
obligations and responsibilities that every lawyer assumes when undertaking to
represent his clients. This is a situation where a lawyer committed himself
professionally to his clients, and may, by his acts, discredit the
administration of justice.
[10] Lawyers who choose to attend hearings without their clients or
witnesses on a mandatory hearing date, in hopes that the trial judge will grant
them an adjournment, display a serious lack of respect towards the Court. Such
action is detrimental to an efficient management of the cases before the Court.
Unless there is an extraordinary reason, this should never happen. The
consequences resulting from the judge's refusal to grant the adjournment could
be much more detrimental to an Appellant, even if the lawyers of both sides are
at fault.
[11] Considering all the difficulties arising from this application for
adjournment, Counsel for the Applicant sought permission to be removed as
counsel of record because he was unable to contact his client. Nevertheless,
the same day, he contacted him and the client and his mother came to the Court
the next day and the day following. If I believe the Applicant, how — within a
few hours — could Counsel manage to contact them while he was unable to do so
between May 13, 2003, and the morning of July 2, 2003?
[12] Whenever a hearing is peremptorily scheduled, the case must proceed
regardless of the circumstances. Only very exceptional situations may justify
the granting of an adjournment and this rests entirely upon the discretion of
the judge.
[13] In this case, I accept the explanations of the Applicant and his
mother. In my opinion, it would be unjustifiable to prevent his case from
being heard in these circumstances. The Applicant found himself in the middle
of a free fall, without being able to understand what was happening to him. It
was not reasonable to expect the Applicant to attend the hearing on
July 2, 2003. Moreover, I cannot disregard the fact that the
Applicant was present in the Roberval Courthouse on the morning of
July 3, 2003. This date was one of the hearing days scheduled by the
coordinator, in her message dated June 30, 2003.
The motion is granted.
Signed at Ottawa, Canada, this 30th day
of April 2004.
Angers J.
Translation certified true
on this 26th day of October 2004.
Ingrid B. Miranda, Translator
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