Date: 19990521
Docket: 96-4799-IT-G
BETWEEN:
ANDRÉ LÉGER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for order
Tardif, J.T.C.C.
[1] Whereas a notice of motion to dismiss the appeal was
served on January 12, 1999, at Québec;
[2] Whereas counsel for the appellant failed to appear when
the motion to dismiss was heard;
[3] Whereas the Honourable Judge Dussault granted the motion
and accordingly dismissed the appeal from the assessments issued
under the Income Tax Act for the 1988, 1989, 1990 and 1991
taxation years;
[4] Whereas costs of $400 were awarded to the respondent;
[5] Whereas a motion in revocation of judgment was filed in
response to that judgment on February 9, 1999;
[6] Whereas counsel for the appellant submitted that the case
had been discussed with counsel for the respondent in the days
prior to the hearing of the motion to dismiss;
[7] Whereas counsel had agreed that the motion would be made
only for the payment of costs if the appellant paid $4,000 as
ordered by the Tax Court of Canada on October 2, 1998, and filed
a list of documents prior to the hearing date;
[8] Whereas the costs were in fact paid before the
hearing;
[9] Whereas the list of documents was also considered to have
been filed before the motion was made, on February 1, 1999,
through the following undertaking:
[TRANSLATION]
LIST OF DOCUMENTS
The documents of which the appellant has knowledge at this
time that might be used in evidence have been cited in the list
of exhibits filed by the respondent.
The appellant does not intend to file a list of documents.
[10] Whereas the appellant’s arguments are confirmed by
the content of the affidavit signed by counsel for the respondent
who was handling the case at the time, and specifically of
paragraphs 4, 5 and 6 of the affidavit, which read as
follows:
[TRANSLATION]
4. The motion to dismiss the appeal was filed for two reasons,
namely: failure to pay $4,000 as ordered by the Tax Court of
Canada on October 2, 1998, and failure to file and serve a
list of documents as required in an order by the Tax Court of
Canada on November 18, 1997.
5. The $4,000 was not paid until January 29, 1999.
6. On February 1, 1999, during a telephone conversation I had
with Marie-France LaHaye, it was agreed that if counsel
for the appellant filed and served a list of documents, the
respondent would claim only the costs associated with the
motion. (Emphasis added.)
[11] Whereas counsel for the appellant also stated that she
was not present when the motion was made because of her ignorance
of this Court’s rules of practice, as she thought that the
motion would be made at 10:00 a.m.;
[12] Whereas counsel are unable to agree to vary an order of
the Court;
[13] Whereas only the Court may vary an order;
[14] Whereas counsel nevertheless have the power and authority
to decide whether or not to make a motion when an order is not
complied with;
[15] Whereas, in view of the discussions between counsel,
counsel for the appellant was reasonably justified in believing
that the motion would be made only for costs;
[16] Whereas the negligence of counsel for the appellant must
be assessed in the context of the discussions that occurred
between the counsel of record;
[17] Whereas the appellant taxpayer was not personally
associated with the negligence;
[18] Whereas the evidence has shown that there was some
confusion about the outcome of the motion to dismiss the
appeal;
[19] Whereas no blame can be placed on the appellant
personally;
[20] In view of all the submissions made by counsel when the
motion in revocation was heard;
[21] The Court grants the motion in revocation of the judgment
rendered by the Honourable Judge Dussault on February 9, 1999,
and accordingly sets aside the said judgment.
[22] On the merits of the motion to dismiss, the Court
dismisses it and orders the appellant to pay $400 as costs within
five days after the service hereof.
Signed at Ottawa, Canada, this 21st day of May 1999.
“Alain Tardif”
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 5th day of April
2000.
Erich Klein, Revisor
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