Date: 20050929
Docket: T-745-99
Citation: 2005 FC 1340
Toronto, Ontario, September 29, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
GRANT R. WILSON
Plaintiff
and
REVENUE CANADAand HER MAJESTY THE QUEEN
Defendants
REASONS FOR ORDER AND ORDER
[1] Grant Wilson brings a motion for the reconsideration of my order of November 25, 2004, dismissing his earlier request for reconsideration of a July 16, 2003 order of Justice Hugessen dismissing Mr. Wilson's action.
Background
[2] Grant Wilson has been involved in income tax disputes with the defendants going back to the mid-1970's, which have resulted in a number of actions in this Court. In this action, which was commenced in 1999, Mr. Wilson claims $60 million in damages, along with other relief, for what he says was the illegal seizure of $441,641.13 from his bank account on December 18, 1991.
[3] In an order dated July 16, 2003, Justice Hugessen found that Mr. Wilson had repeatedly failed to provide proper answers to undertakings and to produce documents as required. Justice Hugessen further noted that orders from the Court appear to have had no effect on Mr. Wilson. As a result, Justice Hugessen dismissed Mr. Wilson's action, with costs.
[4] Mr. Wilson filed no submissions in response to the defendants' motion for dismissal, which was dealt with in writing, pursuant to Rule 369 of the Federal Court Rules.
The First Motion for Reconsideration
[5] Mr. Wilson says that he became aware of Justice Hugessen's order on August 13, 2003. In late September of 2003, he brought a motion under Rule 399(1) to set aside Justice Hugessen's order, alleging that his failure to respond to the defendants' motion for dismissal was the result of a mistake on the part of his counsel.
[6] Rule 399(1) provides:
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399. (1) On motion, the Court may set aside or vary an order that was made
(a) ex parte; or
(b) in the absence of a party who failed to appear by accident or mistake or by reason of insufficient notice of the proceeding, if the party against whom the order is made discloses a prima facie case why the order should not have been made.
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399. (1) La Cour peut, sur requête, annuler ou modifier l'une des ordonnances suivantes, si la partie contre laquelle elle a été rendue présente une preuve prima facie démontrant pourquoi elle n'aurait pas dû être rendue :
a) toute ordonnance rendue sur requête ex parte;
b) toute ordonnance rendue en l'absence d'une partie qui n'a pas comparu par suite d'un événement fortuit ou d'une erreur ou à cause d'un avis insuffisant de l'instance.
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[7] Mr. Wilson's motion materials were evidently defective, and the motion did not proceed in the Fall of 2003. The materials were eventually regularized, and on October 15, 2004, Justice Hugessen directed that this matter be dealt with in General Sittings in Toronto. I heard Mr. Wilson's original request for reconsideration on November 22, 2004.
[8] At the hearing of the motion, counsel for Mr. Wilson advised that it had taken 14 months to bring the motion on for hearing because of counsel's inexperience with Federal Court practice, and because counsel was handling this case on a pro bono basis.
[9] In a ruling dated November 25, 2004, I dismissed Mr. Wilson's motion for reconsideration, with costs to the defendants. I found that Mr. Wilson having admittedly been served with notice of the defendants' motion, it could not be said that the motion was brought ex parte. Mr. Wilson further failed to satisfy me that he had in fact retained counsel to represent him in relation to the motion before Justice Hugessen. He also failed to persuade me that his failure to respond to the defendants' motion to dismiss was the result of an accident or mistake. As a consequence, I found that he was not entitled to relief under Rule 399, and dismissed his motion.
[10] In finding that Mr. Wilson had not persuaded me that he had indeed retained counsel to represent him, I reviewed an exchange of correspondence between Mr. Wilson and Raymond Colautti, a partner with Raphael Partners of Windsor, Ontario. On the basis of the correspondence before me, I found that no reasonable person could possibly have read Mr. Colautti's April 28 and June 13, 2003 letters and come to the conclusion that Mr. Colautti was going to represent Mr. Wilson on the motion for the dismissal of this action until such time as his retainer demands were met. Indeed, I found that it was clear from Mr. Colautti's letters that he took great pains to ensure that Mr. Wilson could harbour no such illusions.
[11] I also noted that although it was apparent from later correspondence that there had been a further letter from Mr. Colautti to Mr. Wilson dated June 25, 2003, Mr. Wilson had failed to produce it. At paragraph 27 of my reasons, I stated:
... Mr. Wilson has elected not to produce a copy of this letter, and thus there is nothing before the Court to indicate that Mr. Colautti agreed to any modification of his retainer demands. Having failed to produce what was arguably the most important letter between Mr. Wilson and Mr. Colautti, given its timing, I am prepared to draw an adverse inference against Mr. Wilson, and to find that Mr. Colautti's June 25, 2003 letter would not have assisted Mr. Wilson in demonstrating that Mr. Colautti was agreeable to Mr. Wilson's counter-proposal, or that he was retained at that time.
[12] I then went on to find that Mr. Wilson provided Raphael Partners with a retainer on July 14, 2003 - two days prior to Justice Hugessen's order dismissing the actions, but that this was "simply too little, too late". In coming to this conclusion, I noted that by July 14, 2003, Mr. Wilson was already several weeks in default with respect to the motion to dismiss.
[13] I also found that although he was not a lawyer, Mr. Wilson was not an unsophisticated litigant. The record before me disclosed that he had been involved in numerous lawsuits over the last 25 years, in which he has frequently represented himself. Further, I found that Mr. Wilson was well aware of the consequences that could flow from his refusal to answer questions on his examination for discovery, having already had his Statement of Defence and Counterclaim struck out in an Ontario action because of his refusal to answer questions.
[14] Having failed to persuade me that his failure to respond to the defendants' motion to dismiss was the result of a mistake, I therefore found that he was not entitled to relief under Rule 399(1).
[15] I also had a second reason for dismissing Mr. Wilson's motion for reconsideration, which was his failure to disclose a prima facie case why Justice Hugessen's July 16, 2003 order should not have been made.
[16] In this regard, I noted that Mr. Wilson's submissions were primarily directed to what he says are the merits of his action. He made little in the way of submissions as to why Justice Hugessen's order should not have been made. In reviewing the matter, I found that the majority, if not all, of the disputed questions appeared to be completely relevant and proper, and that Mr. Wilson provided me with no reason to think otherwise.
[17] I was also satisfied that a review of the record demonstrated a history of delay, obstruction and non-compliance on the part of Mr. Wilson. As a consequence, I found that Mr. Wilson failed to disclose a prima facie case why Justice Hugessen's July 16, 2003 order should not have been made.
The Second Motion for Reconsideration
[18]
399. (2) La Cour peut, sur requête, annuler ou modifier une ordonnance dans l'un ou l'autre des cas suivants :
a) des faits nouveaux sont survenus ou ont été découverts après que l'ordonnance a été rendue;
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399. (2) On motion, the Court may set aside or vary an order
(a) by reason of a matter that arose or was discovered subsequent to the making of the order;
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As noted earlier, my decision dismissing Mr. Wilson's first request for reconsideration was rendered on November 25, 2004. On May 10, 2005, some five and a half months later, Mr. Wilson brought a further motion for reconsideration, this time under Rule 399(2)(a) of the Federal Courts Rules, which provides:
[19] Mr. Wilson also seeks relief under Rule 397(1) of the Rules, which states that:
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397. (1) Within 10 days after the making of an order, or within such other time as the Court may allow, a party may serve and file a notice of motion to request that the Court, as constituted at the time the order was made, reconsider its terms on the ground that
a) the order does not accord with any reasons given for it; or
b) a matter that should have been dealt with has been overlooked or accidentally omitted.
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397. (1) Dans les 10 jours aprPs qu'une ordonnance a été rendue ou dans tout autre délai accordé par la Cour, une partie peut
signifier et déposer un avis de requLte demandant B la Cour qui a rendu l'ordonnance, telle qu'elle était constituée B ce moment, d'en examiner de nouveau les termes, mais seulement pour l'une ou l'autre des raisons suivantes :
a) l'ordonnance ne concorde pas avec les motifs qui, le cas échéant, ont été donnés pour la justifier;
b) une question qui aurait df Ltre traitée a été oubliée ou omise involontairement.
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[20] The basis for Mr. Wilson's new request is that he has now obtained a copy of the June 25, 2003 letter from Mr. Colautti (which, it turns out, was actually dated June 26, 2003) as well as an affidavit from Mr. Colautti himself. Mr. Wilson says that these documents demonstrate that Mr. Colautti was indeed retained to act for him with respect to the motion to dismiss before Justice Hugessen.
[21] Mr. Wilson contends that if these documents had been before me on the return of his original motion for reconsideration in November of 2004, the result would have been very different. The recent production of these new documents constitutes 'special circumstances', in Mr. Wilson's submission, that justify me reconsidering my November 25, 2004 order in accordance with Rule 397(1).
[22] Moreover, Mr. Wilson contends that these documents constitute 'matters subsequently discovered', justifying the setting aside of my earlier order in accordance with the provisions of Rule 399(2)(a).
Analysis
[23] I will deal first with Mr. Wilson's motion under Rule 397. This motion was brought more than five months after my November 25, 2004 decision - well beyond the 10 day period provided for in the Rule. As a consequence, the threshold question is whether an extension of time should be granted for Mr. Wilson to bring the motion.
[24] In Vinogradov v. Canada (Minister of Employment and Immigration) [1994] F.C.J. No. 647, (1994), 77 F.T.R. 296 ¶ 2, this Court held that in order to obtain leave to extend the time for the bringing of a motion for reconsideration under Rule 397, the moving party must provide a reasonable explanation for the delay, and must also establish an arguable case.
[25] I will deal with the issue of Mr. Wilson's explanation for the delay in relation to the motion under Rule 399. At this point, the motion under Rule 397 may be disposed of on the basis that Mr. Wilson has not demonstrated that he has an arguable case.
[26] In Boateng v. Canada(Minister of Employment and Immigration), [1990] F.C.J. No. 472, 11 Imm. L.R. (2d) 9, the Federal Court of Appeal held that for relief to be granted under Rule 397, the oversight in question must be on the part of the Court, and not that of a party.
[27] At the hearing of this matter, Mr. Wilson's counsel candidly acknowledged that based upon the record that was before me on November 22, 2004, there was nothing that should have been dealt with by me that I overlooked or accidentally omitted. As a consequence, I am satisfied that Rule 397 does not assist Mr. Wilson.
[28] Insofar as Mr. Wilson's request for reconsideration under Rule 399 is concerned, the Rule does not stipulate a time period in which such relief must be sought. However, the jurisprudence teaches that there are three conditions that must be satisfied before the court will intervene. These are:
1. The newly discovered information must be a "matter" within the meaning of the Rule;
2. The "matter" must not be one which was discoverable prior to the making of the order by the exercise of due diligence; and
3. The "matter" must be something which would have a determining influence on the decision in question.
See Ayangma v. Canada, [2003] F.C.J. No. 1522, 2003 FCA 382 at ¶ 3.
[29] I am satisfied that the June 26, 2003 letter and Mr. Colautti's affidavit are "matters" within the meaning of the Rule.
[30] The question, then, is whether Mr. Wilson has demonstrated that these matters were not discoverable prior to November 22, 2004, by the exercise of due diligence.
[31] In this regard, it should be noted that the June 26, 2003 letter was addressed to Mr. Wilson. Although he acknowledges receiving all of the other letters that Mr. Colautti sent to him with respect to this matter, Mr. Wilson says that he either lost or never received this one.
[32] According to Mr. Wilson's April 27, 2005 affidavit, in August of 2003, he asked Mr. Colautti for copies of all of the letters that Mr. Colautti had sent to him. Mr. Wilson has produced a fax cover sheet from Mr. Colautti's office dated August 25, 2003, which indicates that copies of all of the letters that had previously been sent to Mr. Wilson were attached. The cover sheet indicates that 13 pages of documents were sent to Mr. Wilson. Mr. Wilson deposes that the June 26 letter was not included in the package of documents sent to him.
[33] Curiously, while Mr. Wilson produced the fax cover sheet, he has chosen not to produce any of the documents that were sent with the fax, nor has he provided any explanation for this omission. This is especially odd, as the last time that Mr. Wilson sought a reconsideration of the order dismissing his action, an adverse inference was drawn against him because of his failure to produce obviously relevant documentation. In the current circumstances, I am once again prepared to draw an adverse inference against Mr. Wilson by reason of his failure to produce obviously relevant documents that would support his version of events.
[34] I am satisfied that Mr. Wilson was sent a copy of Mr. Colautti's June 26 letter in June of 2003. Even if Mr. Wilson did not receive the letter at the time that it was sent, I find, on a balance of probabilities, that he was sent another copy of the letter by Mr. Colautti's office in late August of 2003. Mr. Wilson says that he became aware of Justice Hugessen's order dismissing this action on August 13, 2003. In these circumstances, for Mr. Wilson to have misplaced such an obviously important document demonstrates a singular lack of care on his part.
[35] That said, I accept Mr. Wilson's evidence that he may have lost the letter. Had Mr. Colautti's June 26 letter been in Mr. Wilson's possession when he brought his first request for reconsideration, one would have thought that he would have produced it, as it is arguably helpful to his case.
[36] The question, then, is whether the letter and affidavit were discoverable prior to the hearing of the first motion for reconsideration on November 22, 2004, by the exercise of due diligence.
[37] I have already found that even if Mr. Wilson did not receive the June 26 letter at the time that it was sent, he received a copy of the letter on August 25, 2003. Thus I am satisfied that the letter was not just discoverable, but was actually in Mr. Wilson's possession at that time. If it is true that he subsequently lost it, that is simply evidence of a lack of diligence on his part.
[38] As a consequence, I am satisfied that the June 26, 2003 letter from Mr. Colautti is not a new matter that was not discoverable prior to the making of my November 25, 2004 order.
[39] I also find that the actions of Mr. Wilson's counsel leading up to the making of my original order dismissing his request for reconsideration reflect a further lack of diligence. In this regard, the record discloses two letters from Mr. Wilson's counsel to Mr. Colautti seeking production of the letter in question. On November 13, 2003, Mr. Wilson's counsel wrote to Mr. Colautti stating "I would request that you forward a copy of the June 25, 2003 letter from your file as I require this to complete my submissions to the court and to appease requests from Revenue Canada".
[40] No response having been received from Mr. Colautti, Mr. Wilson's counsel wrote to Mr. Colautti again on January 20, 2004 stating that he "would be grateful for the courtesy of a reply to my letter to you of November 13th, 2003".
[41] Mr. Wilson's first request for reconsideration was not heard for some 10 months after counsel's January 20 letter. There is no evidence before me of any further effort having been made to get a copy of the letter from Mr. Colautti. Mr. Wilson submits that the matter was beyond his control, and that there was nothing further that he could reasonably have been expected to do in this regard.
[42] I do not agree.
[43] It would have been a simple matter for either Mr. Wilson or his counsel to call or write to Mr. Colautti, to impress on him the urgency of the matter, and the prejudice that could accrue to Mr. Wilson if the letter was not produced. The Rules of Professional Conduct of the Law Society of Upper Canada require that counsel, including former counsel, co-operate in such circumstances. The fact that absolutely nothing was done for 10 months is, in my view, evidence of a further lack of diligence on the part of Mr. Wilson and his counsel.
[44] Insofar as Mr. Colautti's affidavit is concerned, it does not appear from the record that Mr. Colautti was even asked to provide an affidavit until after my order of November 25, 2004. In these circumstances, I am not persuaded that the affidavit was not discoverable prior to November 25, 2004 by the exercise of due diligence.
[45] Finally, with respect to the question of whether the June 26 letter and the Colautti affidavit would have had a determining influence on my November 25, 2004 decision, I would simply note that there were two reasons why I dismissed Mr. Wilson's motion for reconsideration: Firstly, I found that Mr. Wilson had failed to persuade me that his failure to respond to the defendants' motion to dismiss was the result of a mistake. As a consequence, I found that he was not entitled to relief under Rule 399(1). Secondly, I found that Mr. Wilson had failed to disclose a prima facie case why Justice Hugessen's July 16, 2003 order should not have been made. Although Mr. Wilson has attempted to re-argue this point, there is no new evidence before me that would justify my reconsidering that aspect of my November 25, 2004 decision. As a result, I am not persuaded that my ultimate decision would have been any different, had the June 26 letter been placed before me.
[46] As the Federal Court of Appeal observed in Rostamian v. Canada(Minister of Employment and Immigration), [1991] F.C.J. No. 525, 14 Imm. L.R. (2d) 49, "there is an important public interest to be served in the finality of judgments". As a consequence, a court "should not lightly set aside a decision on the ground of new matter subsequently discovered".
[47] In all of the circumstances, Mr. Wilson has failed to persuade me that my November 25, 2004 decision should be set aside.
Conclusion
[48] For these reasons, Mr. Wilson's motion is dismissed, with costs.
ORDER
THIS COURT ORDERS that this motion is dismissed, with costs to the defendants.
"A. Mactavish"
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