Date: 20000321
Docket: A-573-97
CORAM: DÉCARY J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
KENNETH R. LIVERMORE
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario on
Tuesday, March 21, 2000)
SEXTON J.A.
[1] These reasons apply to each of the appeals: A-573-97, A-574-97, A-575-97, A-576-97, and a copy of the Reasons will be filed in each appeal.
[2] The taxpayers appeal from the judgment of the Tax Court which dismissed their appeals on a motion brought by the Crown.
[3] The Tax Court had, in January 1997, ordered that the trials were to take place on August 11, 1997 and also fixed May 30, 1997 for completion of examinations for discovery and undertakings thereon.
[4] On consent of the Crown, the dates for completion of discoveries were extended with the final date for delivery of undertakings being July 30, 1997. The appellants failed to provide answers to the undertakings by that date and the Crown moved on August 1, 1997, to have the appeals dismissed or in the alternative to have the questions answered.
[5] The Tax Court Judge dismissed the taxpayers" appeals. He said:
| This history of this file is that the Appellants have consistently been dilatory in their prosecution of the appeals. |
He also said:
| I have not been persuaded by the submissions of Counsel for the Appellants that there was a genuine attempt by his clients to comply with the Orders of this Court. |
[6] It thus appears that the Tax Court Judge was mistakenly of the view that the taxpayers had failed to comply with more than one order of the Court. It seems clear that the taxpayers were only in breach of one order of the Court - that being the one obliging them to complete undertakings by July 30, 1997. The taxpayers in fact provided information on August 6, 1997 which they claimed satisfied the undertakings. The respondent disputes that all such undertakings were fulfilled. When the motion came before the Tax Court Judge, although there was a dispute about whether the undertakings were fulfilled, both parties were prepared to go to trial on August 11, 1997.
[7] In the circumstances, we feel the dismissal of the appeals was too drastic a sanction for the late delivery of the undertakings, since presumably, the matter could have proceeded to trial as scheduled on August 11, 1997.
[8] We must say, however, that we do not condone the conduct of the appellants in failing to conduct themselves in such a way as to facilitate compliance with the Order of the Tax Court. When time limits are set by the Court, they should be observed.
[9] The appeal will be allowed. The decision of the Tax Court Judge will be set aside. The motion of the respondent to dismiss the appeal for delay will be dismissed. The appellants will be ordered to satisfy the undertakings given on oral examination by April 7, 2000.
[10] In the circumstances, costs on the motions before the Tax Court Judge and on the appeal will be against the appellants.
"J. E. Sexton"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: KENNETH R. LIVERMORE |
HER MAJESTY THE QUEEN
DATE OF HEARING: TUESDAY, MARCH 21, 2000
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR JUDGMENT BY: SEXTON J.A. |
Delivered at Toronto, Ontario on
Tuesday, March 21, 2000
APPEARANCES: Mr. Ronald Chapman
Mr. Harry Erlichman
| SOLICITORS OF RECORD: Ronald G. Chapman |
181 University Avenue
Deputy Attorney General of Canada
FEDERAL COURT OF APPEAL
Date: 20000321
Docket: A-573-97
BETWEEN:
KENNETH R. LIVERMORE
Appellant
Respondent
REASONS FOR JUDGMENT
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