Date:
20090312
Dockets: A-182-08, A-251-08, A-253-08,
A-254-08,
A-255-08, A-256-08, A-257-08,A-258-08,
A-259-08
Citation: 2009 FCA 74
CORAM: NADON
J.A.
SHARLOW
J.A.
RYER J.A.
Docket A-182-08
BETWEEN:
SABRINA RIGUTTO
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Docket A-251-08
BETWEEN:
JOAN COOMBS
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Docket A-253-08
BETWEEN:
DANIEL MUNSHAW
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Docket A-254-08
BETWEEN:
KAREN A. MUNSHAW
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Docket A-255-08
BETWEEN:
ANNE M. VOLOCHKOV
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Docket A-256-08
BETWEEN:
JEFF RUSSELL
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Docket A-257-08
BETWEEN:
CARL COOMBS
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Docket A-258-08
BETWEEN:
PERCY G. MOSSOP
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Docket A-259-08
BETWEEN:
LORNA MOSSOP
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
RYER J.A.
[1]
Sabrina
Rigutto (A-182-08), Joan Coombs (A-251-08), Daniel Munshaw (A-253-08), Karen A.
Munshaw (A-254-08), Anne M. Volochkov (A-255-08), Jeff Russell (A-256-08), Carl
Coombs (A-257-08), Percy G. Mossop (A-258-08), Lorna Mossop (A-259-08) and Bob
Wysocki (A-274-08) have launched appeals against decisions of Woods J. of the
Tax Court of Canada (2008 TCC 289), in which their claims for charitable tax
credits were denied.
[2]
On
December 4, 2008, notices of status review were issued by Sharlow J.A. to all
of the appellants, other than Sabrina Rigutto and Bob Wysocki. On January 8,
2009, a notice of status review was issued by Létourneau J.A. to Sabrina
Rigutto. The notices of status required their recipients to make written
representations stating reasons why their respective appeals should not be
dismissed for delay.
[3]
In
responding to the notices of status review, each appellant must, in accordance
with Rule 382.3(1) of the Federal Courts Rules, justify the delay in
proceeding with the appeal. In addition, each appellant must provide a proposed
timetable for the completion of the steps necessary to advance the appeal in an
expeditious manner.
[4]
All of the
appellants to whom notices of status review have been issued have filed written
responses in substantially the same form. In those responses, the appellants
allege that the delay in proceeding with their appeals is mainly attributable
to an inability to obtain certain documents that were seized by the Canada
Revenue Agency under a warrant that was executed in September 20, 2006. None of
the appellants has filed an agreement as to the contents of the appeal book in
their respective appeals. Nonetheless, each appellant states that such
documents are needed so that they can be included in the appeal book and relied
upon in the appeal.
[5]
In
replying to the appellants’ submissions, the respondent contends that the
appellants have not justified the delay in proceeding with their respective
appeals asserting that:
(a) the
documentation that the appellants allegedly require was not before Woods J.
and, accordingly, would not be includable in the appeal book without an order
of the Court; and
(b) the
documentation in issue was considered by Woods J. in her reasons wherein she
observed that the appellants were advised by Bowie J., in the course of case
management that preceded the hearing in the Tax Court of Canada, that there
were procedures available to the appellants that could be followed to obtain
the seized documents or copies thereof.
[6]
Certain of
the appellants made additional submissions in relation to correspondence from
the Minister of National Revenue (the “Minister”) to Mr. Harold Coombs, (the
husband of Joan Coombs, father of Karen A. Munshaw, father-in-law of Daniel
Munshaw, brother of Lorna Mossop, brother-in-law of Percy G. Mossop and uncle
of Carl Coombs) in response to correspondence from Mr. Coombs to the Minister.
Specifically, the submission of Joan Coombs, dated February 16, 2009, states:
On January
20, 2009, a letter was received from the Minister of National Revenue, Mr.
Jean-Pierre Blackburn, P.C.,M.P. stating that officials of Canada Revenue
Agency allowed three (3) unnamed and unauthorized persons to search and seize
documents and things from my office located at 660 Eglinton Avenue, Toronto, on
September 20, 2006. Prior to this acknowledgement by the Minister,
Lynn Watson denied this fact for over two years. This matter was brought to the
attention of Mr. William Baker, CEO Canada Revenue Agency and he refuses to
become involved.
[Emphasis
added]
[7]
In a
response to that submission, dated February 26, 2009, the respondent provided a
copy of a letter, dated January 20, 2009, (the “Minister’s Letter”) from the
Minister to Mr. Harold Coombs and asserted that the Minister’s Letter had been
misrepresented in the submission of Joan Coombs. The Minister’s Letter states,
in part:
In view of
your concerns, senior CRA officials have reviewed your file. They inform me
that during the execution of the search warrant at 660 Eglinton Avenue
East,
in Toronto,
Ontario, on
September 20, 2006, Ms. Lynn Watson, the CRA official in charge of the
investigation, received a call from Mr. David Wood, the CRA official in charge
at the search location, requesting additional officials to assist. She sent
five CRA officials. Two of the officials were named on the warrant. The
unnamed officials helped with the search but did not make any seizure.
Canadian jurisprudence allows named officials to call on others to assist them
provided that the named officials remain responsible for the search activity of
the unnamed officials.
Following the
search, on September 27, 2006, and again on November 14, 2006, the CRA wrote
to Mr. Oleg Volochkov, a director and the general manager of Select Travel
Inc., to notify him that the documents seized from the search location were
available for examination at the Enforcement Office at the Toronto East Tax
Services Office. I am advised that neither Mr. Volochkov nor you responded or
requested to review any documents.
[Emphasis
added.]
[8]
In my
view, the submissions of the appellants do not constitute a justification for
the delay in proceeding with their appeals.
[9]
This Court
has held that, in general, the appeal book should contain only the material
that was before the trial judge so that the appellate court can determine if
the trial judge made the appropriate decision on the basis of the record that
was before him (see Paquette v. Canada (A.G.), 2002 FCA 441). In
addition, the respondent has stated its unwillingness to have the documentation
at issue included in the appeal books, thus rendering an agreement on the
contents of the appeal books – the awaited next step in the appeal process –
most unlikely.
[10]
Also, the
documentation at issue was considered by Woods J. in the hearing in the Tax
Court of Canada. At paragraphs 101 to 105 of her reasons, Woods J. stated:
[101] Before concluding
these reasons, I wish to make a comment about a procedural issue raised by Mr.
Coombs in argument.
[102] The procedural
issue has to do with a seizure of records in the course of a criminal
investigation against a number of individuals, including Harold Coombs, in
September of 2006. Mr. Coombs argues that the seizure has caused prejudice to
the appellants in reference to these appeals because they have not had the
necessary documents to properly prepare their cases.
[103] I do not think
that the appellants can complain of unfairness in this regard. I would note
that this issue was raised in a case management hearing before Justice Bowie on
July 30, 2007.
[104] During that
hearing, the judge indicated that there are court procedures available for the
production of documents that would be available for the appellants who had
appeals then under the general procedure. It was also mentioned by counsel for
the Crown that procedures are in place under the Criminal Code to obtain the
documents. The appellants had ample time to deal with this issue prior to the
trial and they chose not to.
[105] Mr. Coombs argued
that these steps would not have been fruitful because it appeared that some of
the documents are no longer in the Crown’s possession. Mr. Coombs’ theory is
that they were likely taken by a CRA official who, according to Mr. Coombs,
illegally participated in the search and seizure. First, I note that this is an
unproven allegation on which there is not a sufficient evidentiary basis to
support it. I reject any notion that an official from the CRA is hiding
documents in this case.
[Emphasis
added]
[11]
The
appellants have been aware of the means to obtain access to the documents in
question since the case management hearing that preceded the hearing in the Tax
Court of Canada. However, the appellants have not taken any steps to procure
those documents. The appellants now allege that the continued unavailability of
the very documents that had not been obtained in advance of the hearing in the
Tax Court of Canada, is the reason why the present appeals have not been
advanced.
[12]
The
continued unavailability of the documents in question is a direct result of the
failure of the appellants to follow the guidance that was previously provided
by the case management judge in relation to the hearing in the Tax Court of
Canada. In my view, this inactivity on the part of the appellants establishes
inexcusable, rather than justifiable, delay on their part in the advancement of
the appeals.
[13]
Furthermore,
in my view, a fair reading of the portions of the Minister’s Letter reproduced
above is that they contradict the allegations put forward in the February 16,
2009 submission of Joan Coombs and indicate that the seized documents were available
for examination by Mr. Oleg Volochkov, the spouse of one of the appellants. As
such, those portions of the Minister’s Letter, in my view, provide a further
indication that the appellants have failed to justify the delay in proceeding
with the appeal.
[14]
For the
foregoing reasons, I would dismiss the appeals in Court files A-182-08,
A-251-08, A-253-08, A-254-08, A-255-08, A-256-08, A-257-08, A-258-08 and
A-259-08 for delay. A copy of these reasons should be placed in each of those
files.
“C.
Michael Ryer”
“I
agree
M.
Nadon J.A.”
“I
agree.
K.
Sharlow J.A.”
Email this Content