Date: 19991116
Docket: 97-400(IT)I
BETWEEN:
JOHL H. READY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
(Delivered Orally from the Bench at Edmonton,
Alberta,
on Wednesday, September 22, 1999)
Margeson, J.T.C.C.
[1] The matter before the Court at
this time is for trial. It is that of Johl H. Ready,
97-400 Income Tax Informal. This matter was originally set for
hearing on August 6, 1998, and at that time the Appellant
appeared before Judge Rowe and asked Judge Rowe for an
adjournment of the matter. Judge Rowe in his decision of
August 6, 1998 adjourned to allow the Appellant time to issue the
required notices. It does not say anything about obtaining a
lawyer's advice, whether the Appellant indicated to the Judge
at that time that he wanted to get a lawyer or not, I do not
know, it is not clear from the file. But he did not adjourn it to
get a lawyer, he adjourned it to allow the required notices to be
issued.
[2] The Court is satisfied that at
that time, back on August 6, 1998, the Appellant knew that he had
to serve these notices under the Federal Court Act or he
was not going to be able to raise the argument under the
Charter of Rights.
[3] Judge Rowe addressed the Appellant
at that time, and Mr. Ready responded. Ms. Horowitz was acting
for the Minister at the time. They did not object to an
adjournment to allow the notices to be issued. The judgment
says:
"Adjourned to allow Appellant time to issue the required
notices. Trial to be rescheduled at that time."
[4] Now following that nothing was
done by the Appellant, that the Court can see. The matter was
obviously brought forward by the Tax Court of Canada and came
before Judge Christie on February 23, 1999. There is a letter in
the file dated August 21, 1998, which would have been following
the hearing of August 6, and this letter is from the Tax
Court of Canada to Mr. Ready at his address, and it says:
"The purpose of this letter is to confirm that on August
6, 1998 in Edmonton, the Honourable Judge Rowe adjourned the
hearing of this appeal to allow the appellant time to issue the
required notices to all the Attorney Generals of the
provinces.
It is understood that once these notices have been served, the
appellant will contact the Court to reschedule this matter at the
next available sitting in Edmonton, Alberta.
Should you have any questions, please contact me ..."
[5] That was a letter that went to Mr.
Ready. Obviously nothing was done following that letter, because
the next notice the Tax Court has about it is an order of Chief
Judge Christie of the Tax Court of Canada dated
February 23, 1999, which says:
"IT IS ORDERED that the hearing in this matter, which was
scheduled for August 6, 1998 in Edmonton, Alberta, is adjourned
and is fixed peremptorily before this Court at the Scotia Place,
5th floor, Tower 1, 10060 Jasper Avenue,
Edmonton, Alberta, commencing at 2:00 p.m. on Wednesday, the
22nd day of September, 1999."
That was a peremptory trial order.
[6] A letter was sent out to the
Appellant enclosing a certified copy of that order. That is dated
February 24, 1999 and says:
"We enclose herewith a certified true copy of the formal
Interim Order in the above-noted matter..."
[7] That order was the one signed by
Judge Christie, setting the matter down for this date.
[8] On July 13, 1999 the Appellant
wrote to the Tax Court of Canada and said, amongst other
things:
"...that the Judge who adjourned the matter on August 8
agreed that I had the right to legal counsel, including
research".
[9] There is nothing in the order
about that. There is nothing to indicate that the Judge said
that. As I read from the minutes, although that may have been the
Appellant's interpretation. The Appellant certainly has the
right to legal counsel, but it is not Judge Rowe's place to
appoint counsel, it is not Judge Rowe's place really to give
him advice about legal counsel except to say that he had the
right to have counsel. There was nothing improper about that. The
Appellant interpreted it as being that he had the right to legal
counsel including research and may have interpreted it as
something more, I do not know. There was reference in the minutes
to it being crucial to have the legal research done so that it
could be presented before an arbitration hearing before the
Public Service Staff Relations Board against his employer, Indian
Affairs. That matter represented a sizeable sum of money. The
Judge knew of this in granting the adjournment. That arbitration
did not go according to schedule.
[10] The Appellant wrote to the Tax Court on
July 13, 1999:
"...I do not know what adjournment to ask from the Tax
Court of Canada. My gut feeling is that it will take at least
another 6 months to get the employer back to adjudication.
The decision being published and get a cheque into my hands.
Perhaps Ms. Henry could provide you with a better estimate.
Following that, the legal firm requires a period of time.
Please try to get an adjournment, that you think is
appropriate, without my having to go to Court September 22, 1999
to do so. My reasoning is that the adjournment after August 6,
1998 was an indeterminate amount of time, and setting another
date is no different than your deciding that September 22, 1999
was appropriate..."
[11] Following that the Tax Court was
advised by Yaskowich the Department of Justice:
"...the Respondent opposes the Appellant's request
for an adjournment. It is our position that the Appellant has not
prosecuted his appeal without delay, as indicated by the time
that has passed since his last adjournment and his failure to
file the Notice of Constitutional Question which, we believe, was
the reason for Judge Rowe's adjournment."
[12] Then we have a letter from the Tax
Court dated July 29, 1999 to Mr. Ready:
"This will acknowledge receipt of your letter received
July 26, 1999 requesting an adjournment of the hearing in the
above-noted case set down for September 22, 1999 in Edmonton.
This will confirm that your request for adjournment has been
denied and the parties must be prepared to proceed on Wednesday,
September 22, 1999 as scheduled."
[13] Now we are here today. Mr. Ready is not
ready to proceed. Mr. Ready has not sent out the notices. Mr.
Ready has not received any legal advice since 1998, and he says
he wants an adjournment of about another year. Part of the
request is based upon the fact that he cannot afford to get a
lawyer, he does not have the money to pay a lawyer. When asked
about why he did not get legal aid, he said he does not qualify
for legal aid because he is employed and they do not consider
this to be an exceptional case.
[14] The important point is that he has not
done anything to obtain any legal advice since 1998, like
canvassing a lawyer as to whether a lawyer would file the notices
without seeking his money up front, whether the lawyer would take
time payments. He has not really sought any legal advice since
1998.
[15] Now he asks today that the Court wait
until another adjudication of his claim is heard and then after
that he expects that he will have some money to be able to afford
a lawyer to send out the notices. There is no indication that he
will be successful in his adjudication. The hearing in that case
has nothing to do with the present case. It is not tied to this
present case at all.
[16] What is involved here is the fact that
the Appellant has had a hearing date set some time ago. It was
adjourned by Judge Rowe in order to give him an opportunity to
take the requisite steps in order to have the appeal perfected.
As far as this Court is concerned he has not done anything along
that line at all. He has not even attempted to send out the
notices himself, which of course he could do. The important thing
for this Court is that he has not sought any legal advice since
1998, he has not attempted to do anything about the case and he
was advised very clearly by the Minister that she was objecting
to any further adjournment. He was advised by the Tax Court on
July 29 that they were not going to go along with an adjournment
and that he should be ready to proceed today. Even then he did
not attempt to see any lawyer, through legal aid or otherwise. He
took no steps to satisfy the procedural requirements by sending
out the requisite notices.
[17] The Minister's agent objects to any
further adjournment. Her position basically, and put bluntly, is
that he has been given plenty of time. He has not taken any steps
to try to get the matter heard, he is not prepared to go ahead
today. The Minister was not advised, since its letter to him and
the letter of the Tax court on July 29, that he was going to come
today and seek an adjournment before the Court as far as I can
see form what counsel has told me.
[18] The Court is satisfied on the basis of
all of the evidence that this is not a proper case in which to
grant an adjournment. This is the third time that this matter has
been dealt with by this Court and the Court is not satisfied that
the Appellant has made out a case for a further adjournment.
[19] The Court is satisfied the Appellant
has not moved with reasonableness to take the necessary steps to
file the notices or have them filed on his behalf. He has not
satisfied the Court that he has taken any reasonable steps to try
to obtain a lawyer since 1998, and the Court is satisfied that
basically he is content to rely upon the fact that since the
Court granted him an adjournment at least on one other occasion,
that he would obtain an adjournment again. This matter has been
considered by three different Judges of the Tax Court. It has
been set down at least twice, and the Court is not satisfied that
it would be reasonable for it to grant an adjournment in the
matter.
[20] The Court calls upon Mr. Ready. The
Court gives him the opportunity to put before it any evidence
that he wants to today and to proceed. The argument will probably
be made that he has not served the necessary documents under the
Federal Court Act but that will be dealt with in due
course. But we are here now and we will have to hear the
appeal.
[21] Mr. Ready, what do you want to do? I am
not going to grant an adjournment.
MR READY:
Nothing further to say, sir.
HIS HONOUR: Nothing further All right,
counsel.
MS. MOON: In
the circumstances then the crown would move for dismissal of the
appeal.
HIS HONOUR: Let the record show that
the Court has given Mr. Ready the opportunity to present evidence
if he wishes to. You do not wish to present evidence then, Mr.
Ready?
MR. READY:
What's that?
HIS HONOUR: You do not wish to give
evidence in the matter?
MR. READY: I am not
capable of presenting evidence, sir.
HIS HONOUR: The Appellant is not going
to call any evidence and does not want to address the Court
further with respect to the Motion.
[22] The Court dismisses the Motion to
adjourn and the Court, under the circumstances, has no
alternative but to dismiss the case for want of prosecution.
[23] All right, thank you, Mr. Ready; thank
you, counsel.
Signed at Ottawa, Canada, this 16th day of November
1999.
J.T.C.C.
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