Date: 20110901
Dockets: A-209-11
and A-210-11
Citation: 2011 FCA 240
Present: SHARLOW J.A.
BETWEEN:
PATRICK
E. NICHOLLS
Appellant
and
HER
MAJESTY THE QUEEN
Respondent
Dealt with in writing without appearance
of parties.
Order delivered at Ottawa, Ontario,
on September 1, 2011.
REASONS FOR ORDER BY: SHARLOW
J.A.
Date: 20110901
Dockets: A-209-11
and A-210-11
Citation: 2011 FCA 240
Present: SHARLOW
J.A.
BETWEEN:
PATRICK E. NICHOLLS
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1]
The
appellant Mr. Nicholls has appealed two judgments of the Tax Court of Canada. In
both appeals, the steps required to have the appeals made ready for a hearing
have stalled because the parties have not agreed on the contents of the appeal
books.
[2]
The first
appeal (A-209-11) relates to Tax Court File No. 2010-1587(IT)G, which is an
appeal by Mr. Nicholls relating to the 1998 taxation year. Mr. Nicholls moved
for a determination on a point of law and for certain other relief. The Crown
opposed Mr. Nicholls’ motions and filed its own motion for an extension of time
for serving its pleadings. In an order dated January 21, 2011, Justice V.
Miller dismissed Mr. Nicholls’ motion and allowed the Crown’s motion (2011 TCC
40). Mr. Nicholls did not appeal that order. Instead, he applied to the Tax
Court for an order setting Justice Miller’s order aside and allowing the
underlying appeal. That motion was dismissed by Justice Woods in a judgment
dated May 19, 2011 (2011 TCC 279). It is Justice Woods’ judgment that is under
appeal in A-209-11.
[3]
The second
appeal (A-210-11) relates to Tax Court File No. 2010-2433(IT)APP. That
proceeding was commenced by Mr. Nicholls by the filing of a notice of appeal of
income assessments for the 1990, 1991, 1992, 1993, 1994, and 1995 taxation
years. The Tax Court treated those notices as an application to extend the
time for commencing appeals for those years. After a hearing, which included
consideration of a number of motions filed by Mr. Nicholls, Justice Miller made
an order dated January 21, 2011 dismissing the application to extend the time
for appealing. Again, Mr. Nicholls did not appeal that order but applied to the
Tax Court for reconsideration and for certain other relief. Those motions were
dismissed by Justice Little in a judgment dated May 19, 2011 (2011 TCC 272). It
is Justice Little’s judgment that is under appeal in A-210-11.
[4]
In both
A-209-11 and A-210-11, Mr. Nicholls has filed a motion for an order determining
the contents of the appeal books. He has also asked that consideration of those
motions be adjourned pending the determination of two actions against the Crown
for damages. Those actions were commenced by Mr. Nicholls in the Ontario
Superior Court of Justice on August 8, 2011 (CV-11-432346 and CV-11-432349).
[5]
Mr.
Nicholls’ claims for damages are based on allegations of fraud on the part of
certain Crown officials. In both cases Mr. Nicholls appears to be alleging
that, but for the fraud, he would not be subject to certain tax liabilities. The
factual allegations are not completely clear, but I assume that the tax
liabilities referred to in the statements of claim are (or include) the tax liabilities
in issue in the judgments under appeal to this Court in A-209-11 and A-210-11.
[6]
Having
reviewed the material submitted by Mr. Nicholls, I am unable to conclude that
any useful purpose would be served by adjourning his motions to determine the
contents of the appeal books in A-209-10 and A-210-11 pending the outcome of
Mr. Nicholls’ claims for damages. On the contrary, it would appear that his
claims for damages cannot be fully assessed while there is litigation pending
in this Court or the Tax Court that could finally determine the amount of the
tax liabilities referred to in the statements of claim. For that reason, I will
dismiss the motion to adjourn the motion to determine the contents of the
appeal book.
[7]
As to the
contents of the appeal books, it seems to me that at this stage the parties
agree on most of the appeal book contents. There remains disagreement on
relatively minor points. Considering the grounds for appeal asserted by Mr.
Nicholls, it seems prudent to ensure that the appeal book includes all items
currently proposed for inclusion by either party. On that basis, the contents
of the appeal book will be as set out in the orders released concurrently with
these reasons.
[8]
Mr.
Nicholls has asked that certain documents to be included in the appeal books be
provided at the cost of the Crown. I see no basis for departing from the normal
rule that the appellant is responsible for producing and serving the appeal
books, and filing the required number of copies.
[9]
Costs of
these motions are costs in the cause. These reasons will be filed in both
A-209-11 and A-210-11.
“K.
Sharlow”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-209-11
STYLE OF CAUSE: PATRICK
E. NICHOLLS v. HER MAJESTY THE QUEEN
MOTION
DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: SHARLOW J.A.
DATED: September 1, 2011
WRITTEN
REPRESENTATIONS BY:
|
Patrick E. Nicholls
|
FOR
THE APPELLANT
(SELF
REPRESENTED)
|
|
Thang Trieu
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
N/A
|
FOR
THE APPELLANT
(SELF
REPRESENTED)
|
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR
THE RESPONDENT
|
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-210-11
STYLE OF CAUSE: PATRICK
E. NICHOLLS v. HER MAJESTY THE QUEEN
MOTION
DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: SHARLOW
J.A.
DATED: September
1, 2011
WRITTEN
REPRESENTATIONS BY:
|
Patrick
E. Nicholls
|
FOR
THE APPELLANT
(SELF
REPRESENTED)
|
|
Thang
Trieu
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
N/A
|
FOR
THE APPELLANT
(SELF
REPRESENTED)
|
|
Myles
J. Kirvan
Deputy
Attorney General of Canada
|
FOR
THE RESPONDENT
|
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