2013 TCC 110
2011-1947(GST)G
IN THE TAX COURT OF CANADA
BETWEEN: 9203-8371 QUÉBEC INC.
APPELLANT,
-and-
HER
MAJESTY THE QUEEN
RESPONDENT.
BEFORE: The
Honourable Justice Gaston Jorré
PLACE: Montreal,
Quebec
DATE: March
28, 2013
APPEARANCES: No
one is present for the appellant
Louis Riverain, for the respondent
--- REASONS FOR DECISION
---
COURT REGISTRAR: Nicole Champagne
Hélène Amélie Boudreau-Laforge, Transcriber
564 Route 280, Dundee, New Brunswick
E8E 1Z1
Telephone or Fax: (506) 826-1115
TABLE
OF CONTENTS
WITNESS PAGE
- Decision rendered orally
3-6
***Please note that the words in quotation marks in the French
original represent either words that are not in common French usage or words with
improper agreement or that were mispronounced.
***Please note
that a word followed by (sic) indicates an obvious error by the speaker.
DECISION RENDERED ORALLY BY
THE HONOURABLE JUSTICE GASTON JORRÉ:
[This
version of the transcript is a revision of the transcript certified by the
official stenographer that was made by the Judge to improve the reasons’ style and
clarity.]
CLERK:
Hearing
reconvened.
THE
HONOURABLE JUSTICE:
I begin by
noting that it is past 10:50 a.m. and there is still no one present for the appellant.
The
respondent has brought a motion to dismiss the appeal for want of prosecution
on the part of the appellant. For the following reasons, I allow the motion.
Obviously,
when a person does not proceed with a case, an appeal may be dismissed for want
of prosecution. However, in this case, there is another circumstance that I must
consider.
Yesterday
afternoon, the Registry received a letter from counsel for the appellant. A
copy of that letter was also sent to counsel for the respondent, but since he
was away on business, he only became aware of the letter this morning.
The
letter was addressed to one of the Court’s hearings coordinators and it stated
as follows:
[Translation]
We have been instructed and wish to advise the Court that
our client has just put itself under the protection of the B.I.A. . . .
I assume that
stands for Bankruptcy and Insolvency Act.
[Translation]
... and
that a trustee in bankruptcy has been retained in that regard.
A
notice of stay of proceedings will be filed in the record very shortly and,
therefore, we will not be present in Court on March 28, 2013.
Sincerely . . .
And
the letter is signed by counsel for the appellant. I am satisfied that section
29 does not apply for the reasons set out below.
Subsection 29(1) of the Tax
Court of Canada Rules (General Procedure) provides:
Where at any stage of a proceeding the interest or
liability of a person who is a party to a proceeding in the Court is
transferred or transmitted to another person by assignment, bankruptcy, death
or other means, no other proceedings shall be instituted until the Registrar is
notified of the transfer or transmission and the particulars of it.
Subsections
(2) and (3) set out what happens if the section is applicable.
Although
the letter says that the appellant has put itself under
the protection of the Bankruptcy and Insolvency Act, it does not say that the appellant filed an assignment or that a
bankruptcy order was made. There is no evidence before me that an assignment was
filed or that an order was made.
Section
71 of the Bankruptcy and Insolvency Act provides that property is not
vested in the trustee until an assignment is filed or a bankruptcy order is
made.
Accordingly,
there was no transmission of an interest and section 29 of the General Procedure
rules does not apply.
I
would add that I do not know exactly what is being referred to in the second paragraph
of the letter received from counsel for the appellant yesterday, namely, the paragraph
that says:
A
notice of stay of proceedings will be filed in the record very shortly . . . .
If
it is a notice of intention pursuant to section 50.4 of the Bankruptcy and
Insolvency Act, this seems to suggest that it has yet to be filed. However,
as I said, I do not know what is being referred to.
I note
that there is no evidence before me that a notice of intention within the
meaning of the Bankruptcy and Insolvency Act has been filed.
Also,
I would add that, even if there were a notice of intention, it is not at all
obvious to me that the stay of proceedings in section 69 of the Bankruptcy
and Insolvency Act could apply in the case before me as section 69 stays any
remedies that may be pursued by creditors. This appeal is an appeal by the
taxpayer against an assessment. These are not proceedings brought by a creditor.
In any case, as I said, there is no evidence that a notice of intention has
been filed.
In
conclusion, section 29 of the General Procedure rules does not apply and, given
the appellant’s failure to proceed with its appeal, the appeal is dismissed.
Thank
you.
Translation
certified true
on this 17th day of July 2013.
Erich
Klein, Revisor
CITATION: 2013 TCC 110
COURT FILE NO.: 2011-1947(GST)G
STYLE OF CAUSE: 9203-8371 QUÉBEC INC.
v. THE QUEEN
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: March 28, 2013
REASONS FOR JUDGMENT BY: The Honourable Justice Gaston Jorré
DATE OF JUDGMENT: March 28, 2013
DATE OF REASONS
FOR JUDGMENT
DELIVERED ORALLY: March
28, 2013
DATE OF REVISED TRANSCRIPT
OF REASONS FOR JUDGEMENT: April
17, 2013
APPEARANCES:
|
For the
appellant:
|
No one appeared
|
|
|
|
|
Counsel for the respondent:
|
Louis Riverin
|
COUNSEL OF RECORD:
For the appellant:
Name:
Firm:
For the
respondent: William F.
Pentney
Deputy
Attorney General of Canada
Ottawa, Ontario
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