Date: 20000928
Docket: 97-3664-IT-I
BETWEEN:
JAMES T. JOHNSTON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for order
Bowman, A.C.J.
[1]
This is an motion for an order setting aside the dismissal of the
appellant's appeals. Upon the hearing of the motion the
appellant appeared and requested an adjournment. I denied the
adjournment, in part because of the numerous delays that have
already occurred and in part because no purpose would be served
by a further adjournment.
[2]
The record of this court discloses the following sequence of
events:
1.
In a letter dated February 11,1997, the appellant filed an
application for an order extending the time within which he may
serve a notice of appeal in respect of his 1994 and 1995 taxation
years. He was 133 days beyond the expiry date for the 1994
taxation year, but within the time limit for the 1995 taxation
year.
2.
By order dated October 8, 1997, St-Onge J. granted the
following order:
... The Applicant has 30 days from the date of this Order
to file a Notice of Appeal well substantiated.
3.
On November 14, 1997 (six days past the deadline), the
appellant filed a document purporting to be a notice of
appeal.
4.
In a letter dated November 25, 1997, the registry of this
court requested additional information from the appellant.
5.
In a letter dated December 15, 1997, the appellant requested
another extension of time to file his notice of appeal for
1995.
6.
A notice of appeal dated December 18, 1997 was filed by the
appellant.
7.
On June 30, 1998, the respondent filed a notice of motion
requesting that the appeals be dismissed on the basis that the
notice of appeal was not filed within the 30-day period as
stipulated by St-Onge J. in his October 8, 1997
order.
8.
On July 2, 1998 the appellant was served with the notice of
motion advising him that the motion was scheduled to be heard on
July 16, 1998 in Fredericton.
9.
The appellant failed to appear at the hearing of the motion on
July 16, 1998 in Fredericton.
10.
In an order dated July 27, 1998, Brulé J.
granted the respondent's motion and dismissed the appeals for
the 1994 and 1995 taxation years.
11.
In a letter dated December 8, 1998 the appellant requested
that the order of July 27, 1998 be set aside, and that his
appeals be heard. He claimed that "on July 16,
1998" he "missed the court date on ... [illegible]
as I had a lot on my mind".
12.
By notice of hearing dated January 8, 1999, the registry of
this court advised the appellant that his motion was scheduled to
be heard on February 9, 1999 at 9:30 in Saint John.
13.
In a letter dated January 14, 1999, the appellant asked the
court for an adjournment of his "appeal", in order to
"develop his case".
14.
In a letter dated January 29, 1999, this court advised the
appellant that his request for an adjournment was denied, and
that the motion would proceed as scheduled on February 9,
1999, in Saint John.
15.
The appellant failed to appear at the hearing of his motion on
February 9, 1999 in Saint John.
16.
In an order dated February 15, 1999, Bowie J. dismissed
the appellant's motion to set aside the order of
Brulé J. of July 27, 1998.
17.
In a letter dated April 12, 1999 received and filed
May 11, 1999, the appellant asked again to have his appeals
heard for 1994 and 1995. He claimed that he thought the hearing
was to be in Fredericton, despite having received notification of
the hearing's location from the court on two separate
occasions. He claims that he drove to Fredericton only to find
out that he was in the wrong court.
18.
By notice of hearing dated May 26, 1999, this court advised
the appellant that his motion was scheduled to be heard on
June 1, 1999 at 2:00 p.m. in Fredericton.
19.
The appellant failed to appear at the hearing of his motion on
June 1, 1999 in Fredericton.
20.
In an order dated June 11, 1999, Hamlyn J. dismissed
the appellant's application, with the following remarks:
Whereas the Appellant was not present when the case was called,
although duly notified of the time and place of the hearing;
And whereas no one appeared on his behalf;
And whereas the Appellant has an extensive history of non
appearances before the Court although duly notified of the time
and place of the hearings.
21.
In a June 4, 1999 letter, received June 16, 1999 the
appellant said he could not attend the June 1, 1999 hearing
because he received the notice "last Friday" and had a
"ruptured L5 disc".
22.
By letter dated June 28, 1999 the court informed the
appellant that further to the orders of June 27, 1998 and
June 11, 1999 there were no outstanding issues to be dealt
with by the court and that his request for an extension of time
to pay his taxes should be sent to Revenue Canada.
23.
In a letter dated July 9, 1999 received August 10, 1999
the appellant wished to appeal the dismissal under 18.2(2) and
asked how.
24.
By letter dated August 31, 1999 the appellant stated he
would like to appeal and by letter dated November 24, 1999
the appellant apologized for the tardiness of the letter.
25.
In a letter dated July 7, 2000 received and filed
July 14, 2000, the appellant asked the court to reopen his
case on the basis that he was disabled and bed-ridden starting
April 15, 1999. He claims that the peremptory dismissal of
his appeal is "cruel and unusual treatment", and that
he can now attend "a half-hour at a time with one hour
breaks".
26.
By letter dated August 1, 2000 the respondent opposed the
request to reopen but stated that she would appear in court.
27.
In an order dated August 2, 2000, Chief Judge Garon fixed
the hearing of the appellant's application on a peremptory
basis for 9:30 a.m. on Thursday, August 24, 2000 in Saint
John.
28.
By letter dated August 4, 2000 received August 21,
2000, the appellant requested a "court order to Appeal
Court" re the summer 1999 hearing.
[3]
On August 17, 2000 received August 28, 2000 the
appellant wrote to the court and asked that the application be
adjourned from August 24, 2000 on the basis that he had not
received a 30-day notice.
[4]
Obviously there is no merit in this position. We are dealing here
with the appellant's own motion that has been set down
numerous times because the appellant did not appear. The 30-day
notice does not apply to motions. An adverse party has to give a
10-day notice of a motion.
[5]
By letter dated August 24, 2000 received September 5,
2000 the appellant stated that he wished to appeal the hearing on
the grounds that "he could not hear the Judge talk" and
had severe pain.
[6]
In a letter dated September 6, 2000 received on
September 14, 2000 the appellant wants to know how to appeal
the decision.
[7]
As noted above the matter came on before me on August 24,
2000.
[8]
The respondent argues that I have no jurisdiction to set aside
the dismissal of the appellant's appeals. I prefer not to put
the matter on that basis. I am reluctant to restrict this
court's jurisdiction to deal with its own processes. Whatever
merit there may be in the argument that I cannot, in effect, hear
an appeal from the orders of Brulé, Bowie and
Hamlyn JJ. — and there certainly is merit in the
contention — I prefer to put the matter on the basis that
Dr. Johnston has abused the processes of the court with his
seemingly endless motions – frequently in the form of
hand-written notes on small scraps of paper of the size used by
medical persons in giving prescriptions — and even if I had
the discretionary power to set aside the order that dismissed his
appeals this is not a case in which that discretion should be
exercised in the appellant's favour.
[9] I
feel considerable sympathy for Dr. Johnston. He has had a
large number of problems. Nonetheless, the court has shown him
extraordinary patience. We cannot continue to entertain pointless
motions.
[10] The
motion is dismissed.
Signed at Ottawa, Canada, this 28th day of September 2000.
"D.G.H. Bowman"
A.C.J.
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