Docket: 2012-839(IT)I
BETWEEN:
GAIL S. THURSTON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Show Cause
hearing held on March 13, 2013,
at Vancouver, British Columbia.
Before: The Honourable
Justice Johanne D'Auray
Appearances:
|
For the Appellant:
|
No appearance
|
|
Counsel for the Respondent:
|
Zachary Froese
|
____________________________________________________________________
AMENDED JUDGMENT
Whereas counsel for the respondent made a
motion to dismiss the appeal of the appellant for her 2009 taxation year for
failure to appear;
Whereas the appellant was not present in
Court when her appeal was called for hearing, although duly notified of the
time and place of the hearing;
Whereas no one appeared on her behalf;
And having heard what was alleged by the
respondent;
The respondent’s motion to dismiss the
appeal of the appellant is granted and the appeal from the assessment made
under the Income Tax Act for the 2009 taxation year is dismissed in
accordance with the attached the Reasons for Judgment.
This Amended Judgment is issued in substitution of the
Order dated March 22, 2013.
Signed at Ottawa, Canada, this 3rd day of April 2013.
“Johanne D’Auray”
Citation: 2013 TCC 87
Date: 20130403
Docket: 2012-839(IT)I
BETWEEN:
GAIL S. THURSTON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
AMENDED REASONS FOR JUDGMENT
D'Auray J.
[1]
The
appeal of Gail Thurston v. Her Majesty the Queen 2012-839(IT)I was called
for hearing by the Court’s Registrar, Mr. Prassad, on March 13, 2013, at 9:30
in Vancouver.
[2]
The appellant failed to
appear.
[3]
The respondent made a
motion to dismiss the appeal of the appellant with respect to her 2009 taxation
year.
[4]
In light of the following
facts, the appeal for the appellant’s 2009 taxation year is dismissed.
[5]
The appellant filed a
Notice of Appeal on February 24, 2012. The appeal was filed late.
[6]
On May 8, 2012, a
Notice of Hearing was issued by this Court, setting the date of June 12, 2012
for the hearing of the application for an extension of time.
[7]
The respondent
consented to the application for an extension of time and the appeal was deemed
filed on May 22, 2012.
[8]
The Reply to the Notice
of Appeal was filed on June 18, 2012 by the respondent. Under the Statement of
Facts, the respondent stated that the amount of federal tax in issue for the
2009 taxation year was $35,141.04. He stated that the Rule 17 of the Tax
Court of Canada (Informal Procedure), SOR/90-688b, as amended, limits the
relief to which the appellant is entitled, to $12,000 for the particular
taxation year.
[9]
A Notice of Hearing was
sent by registered mail on July 10, 2012 to the appellant at 641, Ballantree
Road, West Vancouver, British Columbia, V7S 1W4, which is the address provided
by the appellant in her Notice of Appeal, advising the appellant that the
hearing in her appeal had been scheduled to be heard on September 5, 2012 at
9:30 a.m. or as soon thereafter as the parties can be heard, at Tax Court of
Canada, 701 West Georgia Street, 6th Floor, Vancouver, British
Columbia.
[10]
On August 2, 2012, the
Court sent a letter to the appellant at the same address, namely, 641, Ballantree Road, West Vancouver, British Columbia, V7S 1W4 advising the appellant that the
Notice of Hearing sent by registered mail was returned to the Court by Canada
Post marked as “Unclaimed”. Accordingly, a Notice of Hearing was sent to the appellant
by regular mail to the same address.
[11]
By fax dated August 29,
2012, the appellant asked for an adjournment of the hearing of her appeal. The
respondent, by letter dated August 30, 2012, did not oppose the appellant’s
request for an adjournment.
[12]
By a letter dated
August 31, 2012, the Court advised the appellant that the adjournment had been
granted. In addition, the Court advised the appellant that the amount of
federal tax in issue was $35,141.04. Since the appellant had elected the
informal procedure, the Court asked the appellant to provide the Court with an
election to limit her appeal to $12,000 as the Court cannot grant more than
$12,000 under the Informal Procedure or indicate if she wished to proceed under
the General Procedure and if so, to provide the Court with the filing fee of
$250.
[13]
The appellant did not
reply to the letter of August 30, 2012 asking the appellant to either limit her
appeal to the amount of $12,000 or to transfer to the General Procedure.
[14]
By an Order dated
October 26, 2012, Justice Hogan made the following Order:
Whereas
it appears to the Court that the aggregate of all amounts in issue is
$35,141.04;
And
whereas the appellant has not elected to limit the appeal to $12,000.00;
IT
IS ORDERED, pursuant to section 18.12 of the Tax Court of Canada Act, that
the provisions of sections 17.1 to 17.8 of the Act apply in respect of
this appeal and that the appropriate filing fee required under the General
Procedure Rules be submitted to the Court on or before November 20, 2012, in
order for this appeal to be properly instituted before the Court.
[15]
On October 29, 2012,
Mr. Campeau for the Registrar of the Court sent by registered mail, a copy of
the Order of Justice Hogan, dated October 26, 2012, to the appellant at 641,
Ballantree Road, West Vancouver, British Columbia, V7S 1W4.
[16]
By November 20, 2012,
no filing fee had been submitted by the appellant.
[17]
On February 1, 2013, an
Order was issued by the Judicial Administrator of this Court requiring the
appellant to appear before the Court in Vancouver on March 13, 2013 at 9:30 a.m.
to show cause as to why this appeal should not be dismissed for delay. The
Order was sent by registered mail at the same address, namely, 641, Ballantree Road, West Vancouver, British Columbia, V7S 1W4.
[18]
On February 20, 2013,
the appellant forwarded to the Court a document entitled “Application for
Extension of Time to Which an Appeal May be Instituted”.
[19]
On March 4, 2013, Ms.
Jodi Gibson, Hearing Coordinator for the Court, attempted without success to
reach the appellant at her home telephone number and on her cellular phone to
explain that the Court granted the transfer of her appeal from the Informal
Procedure to the General Procedure and that since she had failed to file the
required filing fee, a Show Cause Hearing would be held on March 13, 2013,
pursuant to the Order issued by the Court on February 1, 2013.
[20]
During the week before
the trial, the Court’s personnel in Vancouver were able to get in touch
with the appellant. She provided a credit card for the payment of the filing
fee, but the authorization for payment was refused. On the day of the hearing, since
the appellant was not present in Court, the Registrar in Vancouver called the
appellant to find out if she would attend her Show Cause hearing; she responded
that she was not aware that she had to attend.
[21]
In my view, the
appellant failed to prosecute her appeal with due dispatch.
Signed at Ottawa, Canada, this 3rd day of April 2013.
“Johanne D’Auray”
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