[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Jorré J.
Introduction
[1]
The respondent filed a motion for the dismissal
of the appeal. In support of this motion, the respondent submitted that the
appellant failed to act with due dispatch or with the good faith required in dealing
with his appeal.
The facts
[2]
The appellant is appealing from a GST assessment
for the amount of $10,500 in taxes plus interest and penalties. His Notice of
Appeal was filed on July 14, 2009, by Mr. Draghia.
The appellant has chosen the informal procedure.
[3]
According to the respondent, the appellant
should have collected GST on $150,000 in business income. According to the
appellant, this amount was an unexpected windfall for which the appellant had
not provided a service in exchange.
[4]
The Reply to the Notice of Appeal was filed on
September 16, 2009.
[5]
In November 2009, the appeal hearing was
set for July 7, 2010. This hearing was postponed on June 11, 2010,
following the respondent's request.
[6]
On July 7, 2010, the parties filed a joint
application to fix a time and place for the hearing. One of the proposed dates
was January 19, 2011, and, in an order dated July 9, 2010, the Court
scheduled a one-day hearing for January 19, 2011.
[7]
On January 11, 2011, the appellant
requested that the appeal be adjourned for medical reasons; this adjournment
was granted on January 12, 2011.
[8]
In a letter dated February 18, 2011,
Mr. Draghia informed the Court that the appellant's medical condition
remained unchanged.
[9]
On December 21, 2011, the Registry wrote to
Mr. Draghia, asking him to submit a written report on the appellant's
health no later than January 6, 2012.
[10]
Having received no response from Mr. Draghia,
the Registry wrote to Mr. Draghia again on May 1, 2012, to
inform him that if the Court did not receive a written indication of the
appellant's intentions by May 4, 2012, the hearing would be scheduled during
the next session available in Montréal.
[11]
In a letter dated May 4, 2012, Mr. Draghia
informed the Court that, in response to the letters dated December 21,
2011, and May 1, 2012, which he had forwarded to the appellant, he was
still waiting to hear from the appellant. Mr. Draghia also wrote that he
understood that [translation] "[the appellant] still wishe[d] to maintain his position in the case and [that he would] ask
him to confirm this [to the Registry] as soon as possible". The appellant did not inform the Court of his
intentions.
[12]
In an order dated August 8, 2012, the
hearing of the appeal was fixed for October 4, 2012.
[13]
The exact date is unclear but at some point
between May 4, 2012, and October 4, 2012, Mr. Draghia withdrew
from the case; subsequently, on June 6, 2013, he wrote to the Court to
again represent the appellant in this case.
[14]
According to the transcript of the October 4,
2012, hearing, the appellant represented himself and filed a signed Notice of
Discontinuance, without costs. Counsel for the respondent stated that he agreed
with the discontinuance without costs.
[15]
Two copies of the Notice of Discontinuance are
on file. Both copies were signed by the appellant on October 3, 2012; one
copy was signed on October 4, 2012, by Mr. Galarneau, counsel for the
respondent, but the other copy was not signed by the respondent.
[16]
On October 10, 2012, Mr. Galarneau wrote
to the Court to report that, after a meeting he had just had with the
appellant, he became aware that the appellant and the respondent do not have
the same understanding of the discussion that preceded the filing of the
discontinuance: he therefore asked the Court to withdraw the discontinuance and
to give the parties the same status they had before October 4, 2012. He
also asked that a hearing date be fixed quickly.
[17]
On October 17, 2012, the Registry wrote to
the appellant to ask him to submit his observations on the respondent's letter
dated October 10, 2012, by October 31, 2012.
[18]
According to a written note from the Registry dated
October 29, 2012, on the record, Mr. Draghia telephoned the Court to
explain that he had received a telephone call from the appellant's son,
informing him that his father had just had a heart attack. The Court
subsequently received a medical certificate.
[19]
In a letter dated November 7, 2012, the
Registry informed the parties that the Chief Justice had ordered that the
discontinuance be withdrawn from the record and that a hearing be fixed during
the first available session.
[20]
I note that before the March 27, 2013,
hearing, the Court never received any observations in reply to the letter dated
October 17, 2012.
[21]
A hearing was held on March 27, 2013. At
the hearing, the appellant stated that he did not understand why he was there;
as far as he was concerned, the appeal had been settled.
[22]
In an order dated April 4, 2013, I ordered
that the appeal be adjourned sine die, that the appellant pay costs of $625
to the respondent and that he inform the respondent and the Court by
May 6, 2013, whether he was discontinuing or not.
[23]
In May 2013, the respondent filed the
present motion together with an affidavit and written submissions. The
respondent asked that his motion, dated May 7, 2013, be dealt with on the
basis of written submissions.
[24]
The motion gives as a reason that the appellant
did not comply with the order dated April 4, 2013, because he did not pay
the respondent's costs by May 6, 2013, or inform the respondent and the
Court whether he was discontinuing or not by May 6, 2013.
[25]
The appellant sent a cheque in the amount of the
costs to the Court instead of the respondent. This cheque was received on
May 6, 2013, and was then sent to the respondent.
[26]
The cheque was made out to the Tax Court of
Canada.
[27]
Regarding the appellant's obligation to inform
the Court and the respondent of his intentions, the appellant testified that he
had told someone at the Registry, during a telephone call on May 6, 2013, that
he still intended to pursue his appeal.
According to the appellant, it was the Court Registry that had telephoned him
about the cheque.
[28]
However, the appellant does not claim to have
notified the respondent. He testified that this part of the order had not
caught his attention and that he believed that the respondent was represented
by someone other than Mr. Galarneau.
[29]
The order dated April 4, 2013, is not
complicated, and I am certain that the appellant was able to understand [translation] "the appellant shall inform the
respondent and the Court by May 6, 2013, whether he is discontinuing or
not". He clearly made no effort to notify
the respondent.
[30]
Regarding the appellant's testimony according to
which he verbally informed the Court on May 6, 2013, counsel for the
appellant wanted to add to the evidence after the hearing by sending a letter
dated December 17, 2013, to which he appended what he claims to be a copy
of a page from a cellular telephone bill showing what appears to be a call made
on May 13, 2013, to a number of this Court, and apparently, another call
made on May 15, 2013, to the same number.
[31]
In a letter dated December 18, 2013,
counsel for the respondent opposed this way of proceeding, adding that if a
call was made, this did not prove its content.
[32]
The respondent could also have added that even
with proof of the calls on May 13 and 15, 2013, this did not corroborate
the appellant's testimony that he verbally announced his intention on the
May 6, 2013, deadline.
[33]
I agree with the respondent's objection. Counsel
for the appellant cannot simply send additional evidence. Even though this
matter is being appealed under the informal procedure, which offers some
flexibility, the usual procedure—especially as the respondent is represented by
counsel—is to at least begin with an application for leave to submit additional
evidence.
[34]
I will not consider the page appended to the
letter dated December 17, 2013.
[35]
In procedural matters, a court may consult the
court record to see what took place. I said at the hearing that I would examine
the Court record to see whether there was a trace of a conversation between the
appellant and the Registry in May 2013.
[36]
I examined both the paper and the electronic
record and was unable to find any note from the Registry that would corroborate
the appellant's testimony regarding the conversation he alleges to have taken
place on May 6, 2013, in which he indicated his intention to pursue the
appeal.
[37]
I also noted that there was a note on the
record, written by a Registry officer on May 10, 2013, according to which the
Registry officer had left a telephone message with the appellant on May 7,
2013, regarding the cheque for the costs that the appellant had sent to the
Court.
[38]
I do not accept the appellant's testimony that,
on May 6, 2013, during a telephone call initiated by the Registry to tell
him that he had sent the cheque to the wrong address, he informed the Registry
that he still intended to pursue his appeal. This is unlikely, given that the
letter accompanying the cheque was delivered by mail that same day, that the
letter had to have been transferred from the mail room to a Registry officer
and that the Registry left the appellant a telephone message regarding the
cheque on May 7, 2013.
[39]
There are other events that must also be
considered.
[40]
On May 30, 2013, the Registry wrote to the
appellant regarding the respondent's May 7, 2013, motion. The Registry
asked the appellant to make written submissions by June 6, 2013.
[41]
On June 6, 2013, Mr. Draghia returned
to the case and wrote a letter to the Court to inform it that he was again
representing the appellant. Mr. Draghia wrote that he had just received
the respondent's motion and asked for a seven-day extension to reply to the
letter dated May 30, 2013.
[42]
On June 14, 2013, the appellant filed a notice
of objection to the respondent's motion together with a supporting affidavit.
Among other things, the appellant stated that he and the respondent had reached
a settlement and that his discontinuance was conditional
on the respondent's recognition and respect of this settlement. The appellant
also stated that a motion to certify this settlement would be filed [translation] "as soon as possible".
[43]
The appellant also requested a hearing.
[44]
On August 15, 2013, the Court ordered a
hearing of the respondent's motion on December 2, 2013, on condition that
the appellant serve the respondent his motion for approval and the affidavit
and written submissions supporting his motion, and file these with the Court by
September 20, 2013. The Court ordered that the respondent's motion and the
motion to certify be heard on the same day.
[45]
The appellant did not comply with the order
dated August 15, 2013, nor did he file his motion to certify by September 20,
2013. In an order dated November 4, 2013, the Court amended its order
dated August 15, 2013, and ordered that only the respondent's motion be
heard on December 2, 2013.
[46]
On November 21, 2013, the appellant filed
with the Court two notices of motion with a supporting affidavit.
[47]
The first motion was for the certification of a
settlement. I have one comment to make about this first motion. The motion and
the affidavit are very short: the affidavit is half a page long. It is hard to
understand why the motion could not have been filed before September 20,
2013.
[48]
The second motion filed by the appellant is for
a confidentiality order so that all the testimony and documents provided by the
appellant be declared confidential. The affidavit supporting this motion
contains only two sentences and a total of 43 words.
[49]
Considering that the Notice of Appeal was filed
in July 2009 and that Mr. Draghia signed the joint application to fix
a time and place for the hearing on July 7, 2010, a hearing that should
have taken place on January 19, 2011, and that was only adjourned on January 12,
2011, following a request made on January 11, 2011, that is, eight days
before the hearing, it is hard to understand why the issue of confidentiality
was not raised earlier.
Analysis
[50]
I have set out all of these facts because in
listing them the reply to the question whether the appellant acted with due
dispatch becomes clear.
[51]
Here is a summary of the essential facts:
(a)
When the Registry sent
the letter dated December 21, 2011, requesting a
written report on the appellant's health by January 6, 2012, there was no
reply.
(b)
When the Registry wrote to the appellant again
on May 1, 2012, to ask him to clarify his intentions by May 4, 2012, Mr. Draghia
replied that he was still waiting to hear from the appellant; the appellant
gave no news between this date and the October 4, 2012, hearing.
(c)
When the Registry wrote to the appellant on
October 17, 2012, to ask him to submit his observations regarding the
respondent's letter dated October 10, 2012, by October 31, 2012, there
was no reply from the appellant between this date and the March 27, 2013,
hearing.
(d)
When the Court ordered the appellant, in an
order dated April 4, 2013, to inform the respondent and the Court whether
he was discontinuing or not, the appellant did not disclose his intentions to
the respondent or the Court before the deadline set by the Court, namely, May 6,
2013. There was a reply only on June 14, 2013. There was no application
for an extension of this deadline.
(e)
After the appellant stated in his notice of
objection that a motion to certify would be filed [translation] "as soon as possible" and the Court
ordered the holding of a hearing for the respondent's motion for dismissal, as
requested by the appellant, on condition that the motion to certify be filed by
September 20, 2013, the appellant filed a motion to certify only on November 21,
2013, without requesting an extension of the September 20, 2013, deadline.
[52]
I recognize that in late October 2012, the
appellant had a heart attack that may have made him unable to respond to the
letter dated October 17, 2012, by October 31, 2012; however, this
does not explain the lack of a reply before March 27, 2013.
[53]
There is no evidence that would explain why the motion
to certify was filed late.
[54]
At one point in his pleadings, Mr. Draghia suggested
that the delay was the result of difficulties related to his motion for
confidentiality. I fail to understand this argument, as there is no link
between the motion to certify and the motion for confidentiality. Moreover, as
I have said previously, when one reads the notice of motion to certify and the
supporting affidavit, it is hard to fathom why the motion could not have been
filed on time.
Conclusion
[55]
When one considers the events I have just
described, it is clear that the appellant did not act with due dispatch. Not
only did he fail to comply with two orders, but, generally speaking, his
behaviour was not to respond or to respond late.
[56]
On the contrary, when looking at the events
described as a whole, I cannot but conclude that the appellant sought to delay
the proceeding. In the circumstances, the appeal should be dismissed.
[57]
The appeal is dismissed.
Signed at Ottawa, Ontario, this 21st day of November 2014.
"Gaston Jorré"
Translation certified true
on this 13th day of January 2015
Johanna Kratz, Translator
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