Date:
20090317
Docket:
A-453-07
Citation:
2009 FCA 89
CORAM: EVANS
J.A.
RYER
J.A.
TRUDEL
J.A.
BETWEEN:
DONALD NEIL
MACIVER
Appellant
and
HER MAJESTY
THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Winnipeg, Manitoba, on March 17, 2009)
TRUDEL J.A.
[1]
The Tax Court of Canada Rules (General Procedure), SOR/90-688a (the Rules) provide
for summary disposals of appeals when a party fails to cooperate at the
discovery stage of the proceedings. Although this rule may seem drastic, there
are circumstances where an appeal may be either dismissed or granted to
sanction one of the parties’ repeated breaches of the Rules or an apparent
intent to delay and abuse the process.
[2]
Faced with
such a case, Campbell J. (the Motions Judge), relying on Rules 85, 91 and 110,
granted the respondent’s motion for summary judgment and dismissed Mr. MacIver’s
appeal of an assessment made by the respondent following the appellant's
conviction for tax evasion.
[3]
This is
the appeal of her judgment (2007TCC554; 2003-3065 (IT)G, September 25, 2007).
After an extensive review of the record, including a full transcript of the
discovery, the Motions Judge found that the appellant "clearly intended to
avoid" or simply refused to answer "pertinent and relevant questions"
related to "entire subject areas." The appellant’s "deliberate
obstructive behavior" was noted by the Motions Judge in relation to
portions of the Reply to the Notice of Appeal that he had unsuccessfully
attempted to have struck (ibid. at paragraphs 18 and 20).
[4]
The
Motions Judge also found that some of the appellant's answers were
antagonistic, abusive and scandalous, in that they suggested impropriety on the
part of members of the courts, the practising bar, and government officials.
[5]
The
appellant’s defiant misconduct was compounded by the fact that, although a
self-represented litigant, he is an experienced lawyer and has been a member of
the Law Society of Manitoba since 1953. Moreover, the record showed that the
appellant had also been convicted of four counts of perjury and two counts of
obstruction of justice in reference to a related lawsuit in which he had
provided false testimony before the Manitoba Superior Court by swearing false
affidavits, giving false testimony on examination under oath and writing an
intentionally misleading letter to a judge of that Court. Finally, the record
showed that the appellant continued to assert the veracity of statements made
in those affidavits, despite his conviction. This was the background against
which the Motions Judge dismissed the appellant’s appeal. Ultimately, the importance
of protecting the integrity of the judicial process outweighed all of the
appellant’s submissions.
[6]
The only question
at issue before this Court is whether the Motions Judge committed a reviewable
error in the exercise of her discretion when dismissing Mr. MacIver’s appeal. In
his memorandum, the appellant attacked the Motions Judge’s decision because it
was not based on affidavit evidence subject to cross-examination. He also
submitted that she erred by not considering the substantive issues of his
appeal, by allowing the fact of his previous convictions to influence her
decision on the motion, and by ignoring favourable character evidence. At the hearing of
this appeal, however, he admitted the inappropriate conduct and insisted on the
fact that the Motions Judge’s conclusion was too harsh and that he should be
given a second chance by this Court because the Motions Judge was wrong in
predicting his future conduct.
[7]
This Court
will be free to substitute its discretion for that of the Motions Judge’s if
the Motions Judge has given insufficient weight to relevant factors or has made
an error of law (Morel
v. Canada, 2008 FCA 53 at paragraph 17; Elders Grain Co. v. M/V Ralph Misener (The), 2005 FCA 139 at paragraph 13).
[8]
We are of
the view that this appeal is without merit. The Motions Judge properly
considered that the use of her dismissal power under section 110(b) and section
91(c) of the Rules should only be exercised where the violations of the Rules
are multiple, egregious, and intentional. The record showed the appellant’s
lack of efforts in answering questions or fulfilling undertakings. It was
replete with contradictions and inconsistencies, not to mention deceitful
information and disrespectful conduct.
[9]
The appellant’s
arguments amounted to assertions that he should not be held responsible for his
actions because they were due to mistakes, misunderstandings, or his mental
state at the time of the discovery. These factors and the gravity of
dismissing the appellant’s appeal were duly considered by the Motions Judge who
finally concluded that the appellant’s deliberate pattern of conduct intended
to frustrate the discovery process of the Tax Court was likely to continue.
[10]
This
pattern continued before this Court. The appellant has blatantly disregarded an
order of this Court setting the contents of the appeal book and filed an "appellant’s
addendum" containing the materials which had been excluded.
[11]
Although
we are sympathetic to the appellant’s state of health and that of his wife,
which seem to have deteriorated following the impugned judgment, still the
appellant has failed to persuade us that the intervention of this Court is
warranted. Therefore, this appeal will be dismissed with costs.
"Johanne
Trudel"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-453-07
(APPEAL OF THE JUDGMENT RENDERED BY THE
HONOURABLE MADAM JUSTICE CAMPBELL OF THE TAX COURT OF CANADA, DATED SEPTEMBER
25, 2007, (2007TCC554) DOCKET NO. 2003-3065 (IT)G.
STYLE OF CAUSE: DONALD
NEIL MACIVER v.
HER MAJESTY THE QUEEN
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: March 17, 2009
REASONS FOR JUDGMENT OF THE COURT BY: (EVANS, RYER, TRUDEL JJ.A.)
DELIVERED FROM THE BENCH BY: TRUDEL J.A.
APPEARANCES:
|
Donald Neil MacIver
|
SELF-REPRESENTED
|
|
Tracey
Pniowsky
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
|
FOR THE APPELLANT
|
|
John H. Sims,
Q.C.
Deputy Attorney General of Canada
|
FOR THE
RESPONDENT
|
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