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Citation: 2003TCC405
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Date: 20030617
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Docket: 2001-1723(IT)I
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BETWEEN:
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DAVID DESMOND HOLT,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
McArthur J.
[1] This is a motion by the Respondent
for an Order dismissing the appeal from an assessment of tax for
the 1998 taxation year. The Respondent's grounds are:
a) The appeal
was scheduled for hearing before the Tax Court of Canada on
January 11, 2002;
b) The
Appellant did not appear on the day fixed for the hearing and the
Respondent applied pursuant to section 18.21(1) of the Tax
Court of Canada Act for an Order that the appeal be
dismissed;
c) The Court
adjourned the hearing of the appeal for a period of six months
and advised that, should the Court not hear from the Appellant
during the period of the adjournment, the Respondent could
resubmit its motion to dismiss the appeal; and
d) To the
Respondent's knowledge, the Appellant has not taken any steps to
pursue the appeal during the period of the adjournment.
[2] Some of the facts are accurately
set out in the affidavit of Rosemary daSilva-Kassian, paralegal
with the Department of Justice in Edmonton, including the
following:
3. ...
Brooke Sittler,[1]
wrote to the Appellant on December 6, 2001, advising that she had
conduct of the file. ...
4. ...
Ms. Sittler wrote to the Appellant on December 20, 2001, advising
the Appellant that she would be willing to review any further
information in support of the Appellant's claims before the
hearing scheduled for January 11, 2002. ...
5. ...
Respondent received a facsimile from the Appellant dated
January 10, 2002 advising the Respondent that he would
not be attending the hearing scheduled for January 11, 2002 due
to poor health. ...
7. ...
Ms. Sittler ... made efforts to contact the Appellant by
telephone without success. ...
9
... the Appellant did not appear at the hearing of the
appeal on January 11, 2002. ... Ms. Sittler made an
application pursuant to section 18.21(1) of the Tax Court
of Canada Act for an Order that the appeal be dismissed.
10. ... by letter
dated January 22, 2002, the Court advised the Appellant that the
hearing of the appeal was adjourned for a period of six months.
The said letter also stated that if the Appellant did not contact
the Court during the adjournment period, the Respondent could
"resubmit its motion to dismiss the appeal. ...
11. ... on April 24,
2003, ... the Court has not received any communications from
the Appellant during the period of the adjournment.
12. ... the Appellant
has not taken any further steps to pursue the appeal.
The request for an adjournment of the scheduled January 11,
2002 hearing contained the following, which was received by fax
from the Appellant:
with regard to hearing tomorrow will not be able to attend due
to poor health which is terminal.
as far as information you can view public records to verify
large debt with no assets to cover
1997 year is under appeal so it should be looked after
first
due to previous bankruptcy the only humane way to settle is to
go before tax fairness board and try for fresh start
as i do not have long to live i would offer my body live for
medical research in return my family could survive in peace
otherwise just shoot me by firing squad the most practical
solution to this problem
thank you for your consideration
[3] Mr. Holt made submissions during
the telephone conference motion of June 3, 2003. He stated that
he did not attend on the hearing date of January 11, 2002 because
it was a bitterly cold day and his 10-year old son was sick. He
had apparently forgotten about his terminal illness referred to
in his facsimile of January 10, 2002.
[4] I accept that he was advised on
January 22, 2002 that the hearing of the appeal was adjourned for
six months from January 11, 2002. I do not believe that he made
any attempt to contact the Court, the Respondent, or the fairness
committee until he was advised of the present motion.
[5] He referred to the seizure action
of Canada Customs and Revenue Agency for tax arrears in the
approximate amount of $161,000. This appears to be for amounts
other than the 1998 taxation year at issue in this appeal. The
Appellant is a former accountant. He stated he is working
although probably in another line of work.
[6] This motion is a continuation of
the January 11, 2002 motion for dismissal of the Appellant's
appeal. The Respondent presents three reasons for dismissal: (i)
that the Respondent made several attempts to contact the
Appellant, without success;[2] (ii) on December 20, 2001, the Respondent wrote
to the Appellant offering to review his information and the
Appellant did not reply; and (iii) the Appellant has made no
formal application to the Court.
[7] On January 11, 2002, in reply to
the Respondent's motion to dismiss the appeal, I stated in
part:[3]
... I am going to take the Appellant's fax ...
at its face value. It is just too dramatic for me to ignore.
... if the Court has not heard anything further from him
in the six-month period, I invite the Respondent, and it can be
done through conference call if it's practical, to resubmit
its motion to have the case dismissed. ... in all
likelihood, if we have not heard from him in six months the
appeal will be dismissed.
It is now over 16 months since the adjournment and the
Appellant has taken no action whatsoever. If he wishes to make an
application under the fairness provision of the Income Tax
Act with respect to the 1998 taxation year under appeal, he
may be in a better position with a judgment in place.
[8] The motion is granted and the
appeal from the assessment of tax made under the Act for
the 1998 taxation year is dismissed.
Signed at Ottawa, Canada, this 17th day of June, 2003.
J.T.C.C.
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