REASONS
FOR JUDGMENT
V.A. Miller J.
[1]
The issue in this appeal is whether the Minister
of National Revenue properly reassessed the Appellant by including the amounts
of $124,441 and $233,161 in his income for the 1999 and 2000 taxation years
respectively. The Minister reassessed the Appellant beyond the statutory time
limit and he levied gross negligence penalties.
[2]
The Respondent has brought a motion for an Order
to dismiss this appeal pursuant to sections 64 and 140 of the Tax Court of
Canada Rules (General Procedure) (the “Rules”) on the grounds that
the Appellant failed to prosecute his appeal with due dispatch and he failed to
appear at the hearing of his appeal. In support of her motion, counsel for the
Respondent relied on the affidavit of Carla Riley Green, a legal assistant in
the Tax Law Services Section of the Department of Justice in Toronto, Ontario.
[3]
The facts that I have relied on in these reasons
were taken from the Court record and the affidavit filed with the motion. The
history of this appeal is lengthy. As can be seen from the history listed
below, the Appellant has had numerous extensions of time to report to the Court
concerning the status of his appeal and his ability to prosecute his appeal.
This Court has tried to accommodate the Appellant because of the predicament he
found himself in. Each time the Appellant refused to proceed with his appeal.
[4]
The Appellant instituted his appeal on April 11,
2005. When the Court notified the parties by letter dated October 19, 2005 that
there should be a status hearing in this case or the parties could submit a
mutually agreeable litigation timetable, it was informed that the Appellant was
no longer in Canada. He was in China and was unable to obtain a Visa to
re-enter Canada after a removal order had been made against him by the
Immigration and Refugee Board (Immigration Appeal Division).
[5]
On December 8, 2005, the Appellant retained
counsel in Toronto to represent him in this appeal and he was given an
extension of time to arrange his affairs so that his appeal could proceed as
expeditiously as possible. The parties were asked to submit a litigation
timetable no later than January 16, 2006.
[6]
The parties did not send a litigation timetable
to the Court and by letter dated January 24, 2006, counsel for the Appellant
requested that a Status Hearing not be set down as he intended to request a stay
in this appeal.
[7]
The Court considered the Appellant’s request and
the correspondence from the Respondent and directed that there would be a
Status Hearing by telephone conference call after May 1, 2006. The Status
Hearing was later set for June 8, 2006.
[8]
Counsel for the Appellant informed the Court
that his client was again refused a temporary resident Visa to enter Canada. On June 8, 2006, the Status Hearing was adjourned on the basis that the Appellant
would provide a status report no later than June 23, 2006. On July 12, 2006,
counsel for the Appellant indicated that he was initiating an appeal on behalf
of his client of the decision made by the Canadian Embassy in Beijing. The
present appeal was held in abeyance while the Appellant attempted to get a visitor’s
permit to Canada. Counsel for the Appellant was directed to provide a further
status report by October 31, 2006.
[9]
By letter dated October 31, 2006, counsel for
the Appellant informed this Court that he intended to make an Application for
Leave for Judicial Review with the Federal Court. On November 29, 2006, counsel
wrote to the Court that his client had made an application for a visitor’s Visa
to Canada on November 8, 2006. The Appellant was requested to provide a further
status report by December 29, 2006. In a letter dated January 24, 2007, counsel
for the Appellant submitted a copy of the Appellant’s Application for Leave and
for Judicial Review in the Federal Court of an Immigration Officer’s refusal to
issue a Temporary Resident Visa to the Appellant.
[10]
The Appellant did not notify the Court
concerning the outcome of his application to the Federal Court. Instead, the
hearings coordinator did research and ascertained that the Appellant’s
Application for Leave was dismissed by the Federal Court on March 28, 2007.
[11]
On two occasions the Court requested that a
further status report be submitted by counsel for the Appellant. Counsel
ignored both of these requests and no such reports were given to the Court. The
Court set down a Status Hearing in this matter for September 20, 2007. That
hearing took place and a litigation timetable was finally set for the parties
whereby they were to complete the steps so that this appeal would be ready for
a hearing. The parties were supposed to communicate with the Hearings
Coordinator on or before April 30, 2008 as to the status of the appeal. This
didn’t happen. Instead, the Court set down a Show Cause Hearing.
[12]
By Order dated May 7, 2008, the parties were
required to attend before a Judge of the Court to show cause why the appeal
should not be dismissed for delay. At the Show Cause Hearing on June 10, 2008,
the Court again set dates for the parties to complete discovery of the parties.
The parties were to communicate with the Court by November 28, 2008.
[13]
By letter dated November 21, 2008, counsel for
the Respondent asked that a Pre-Hearing Conference be scheduled in this matter.
The Court attempted to contact counsel for the Appellant by email, mail and
telephone but to no avail. Finally, on January 16, 2009, the Court was in
contact with counsel for the Appellant and it set a case management conference
to be heard by telephone conference call for January 20, 2009.
[14]
At the case management conference, the parties
confirmed that this matter was ready to proceed to trial. At this time, the
Appellant also confirmed that his applications for a Visa for Canada were not limited to his getting into the country for trial purposes.
[15]
Counsel for the Appellant advised the Court on
May 7, 2009 that he was unable to obtain instructions and appropriate funding
from the Appellant. On July 15, 2009, the Appellant advised the Court that he
no longer had counsel and on September 24, 2009, the Appellant’s counsel filed
a Notice of Intention to Cease to Act.
[16]
Although the Appellant wrote to the Court, he
failed to keep the Respondent informed of his address in China.
[17]
The Respondent made a motion for an Order
requiring the Appellant to pay security costs into Court of $13,005.04 in
accordance with section 166.1 of the Tax Court of Canada Rules (General
Procedure) (the “Rules”). The Order was granted on August 2, 2011
and the Appellant paid the requested amount into Court.
[18]
On March 1, 2012, the Court directed that this
appeal would be heard by video conference. The parties were asked to provide
their availability for the months of July, August and September 2012. The
Appellant objected to his appeal being heard by video conference on the basis
that he felt he would not get a fair trial if he could not enter Canada to prepare for the hearing. He asked the Court to intercede with Immigration or
Foreign Affairs on his behalf to assist him in getting a Visa. The Respondent
was willing to have the appeal heard by video conference and gave the dates she
was available for the hearing.
[19]
The Court considered the Appellant’s concerns
and informed him that the Court would do its best to accommodate the
Appellant’s location but it was unable to assist him in obtaining a Visa for
entrance into Canada. By letter dated August 2, 2012, the Court again directed
that this appeal would be heard by video conference and asked for the parties’
availability during the months of November and December 2012 and January 2013.
The Appellant responded to the Court stating that he had written to the Prime
Minister for help obtaining a Visa and asking that his appeal not be scheduled
until he heard from the Prime Minister. The Court acquiesced and agreed to hold
off scheduling this appeal until June 30, 2013.
[20]
Neither the Court nor the Respondent received
any communication from the Appellant and the appeal was set down on October 30,
2013 for hearing on July 9, 2014 in Toronto, Ontario.
[21]
On May 8, 2014, the Appellant wrote to the Court
asking for an adjournment of his appeal on the basis that he had undergone
surgery only two weeks prior. He asked if the hearing of his appeal could be
postponed. The Respondent opposed the request for an adjournment. However, the
Court informed the Appellant by letter dated May 14, 2014 that it required a
doctor’s note or medical certificate when an adjournment was sought for medical
reasons. The Court asked the Appellant to forward either a doctor’s note or a
medical certificate. The Appellant did not forward a doctor’s note; he did not
even respond to the Court’s letter and his request for an adjournment was denied.
[22]
Sometime between May 14, 2014 and July 7, 2014,
the Appellant engaged counsel for the sole purpose of requesting an adjournment
of this appeal. On July 7, 2014, a Notice of Application for an Order
adjourning the hearing date was filed with the Court. On July 8, 2014, the
Appellant and George Alatopulos, counsel on the application, were notified that
Associate Chief Justice Rossiter had denied the adjournment request. Mr.
Alatopulos appeared in Court on July 9, 2014 and he made it clear that he was engaged
by the Appellant for the sole purpose of making the adjournment request. I
confirmed that an adjournment would not be granted.
[23]
The documents which accompanied the application
for an adjournment disclosed that the Appellant had been living in the United Kingdom since at least September 14, 2010. According to his Marriage Certificate, he
married Ping Wang, a British citizen, in Oxford, England on that date. His
profession was listed as a car dealer. Also included with the attachments to
the application for an adjournment was a letter from Visa & Immigration UK
which indicated that on June 15, 2014, the Appellant had submitted an
application for naturalisation in the United Kingdom.
[24]
At no time prior to the application for an
adjournment, did the Appellant inform this Court that he was no longer living
in China and had moved to the United Kingdom.
[25]
On a review of this file, it appears to me that
the Appellant was more interested in obtaining a Visa to enter Canada than he was in prosecuting his appeal. The Appellant was given numerous
opportunities to proceed with his appeal and he chose instead to insist that
the Court should assist him with obtaining a Visa to enter Canada. The appeal is dismissed for want of prosecution.
Costs
[26]
The Respondent has asked for costs of
$11,693.43. It is my view that she is entitled to costs as the Appellant’s
delay in proceeding with this appeal has been inordinate and has caused the
Respondent to incur costs. He has failed to prosecute his appeal in spite of
the many accommodations given to him over a period of nine years. The
Respondent is entitled to her disbursements of $4,218.43 and costs for the
services of counsel in the amount of $5,725 for a total cost of $9,943.43.
Signed at Halifax, Nova Scotia, this 12th day of August 2014.
“V.A. Miller”
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