[1] This is an appeal from the decision of Madam Justice Lucie Lamarre of the Tax Court of Canada, dated October 9, 2003, which denied the appellant's request for an adjournment of the hearing of her appeal from reassessments made by the Minister of National Revenue (the "Minister") denying her deceased husband's claim for investment losses in respect of taxation years 1988 to 1995.

[2] The hearing of the appellant's appeal from the Minister's reassessments was scheduled before the Tax Court on October 9, 2003. Mrs. Sokolowska and her daughter, Elwira Sokolowska, who is helping her mother by reason of her difficulties with the English and French languages, failed to appear at the hearing. Mr. Ed Sokolowski, the appellant's nephew, appeared at the hearing and requested Madam Justice Lamarre to adjourn the proceedings on the ground that both Maria Sokolowska and Elwira Sokolowska were ill.

[3] After considering whether there were sufficient grounds to justify an adjournment, and concluding that none existed, the Tax Court judge refused to adjourn the hearing. Specifically, the judge considered the following factors in denying the adjournment, namely: the fact that Maria Sokolowska had failed to provide a medical certificate; the fact that the Court had arranged for the services of an interpreter for the hearing; the fact that the respondent had not consented to the request for adjournment; and finally, that the appeal was without merit.

[4] As a result, on the basis of subsection 18.21(1) of the Tax Court of Canada Act, R.S.C. 1985, c. T-2 (the "Act"), which provides that the Tax Court of Canada must, upon an appellant's failure to appear at the hearing of his case or to obtain an adjournment of the hearing, dismiss the appeal unless there exist circumstances justifying the setting down of the appeal at a later date, Madam Justice Lamarre dismissed the appeal before her. Section 18.21of the Act provides as follows :

18.21 (1) Where an appellant does not appear on the day fixed for the hearing, or obtain an adjournment of the hearing, of an appeal, the Court shall, on application by the respondent and whether or not the appellant has received notice of the application, order that the appeal be dismissed, unless the Court is of the opinion that circumstances justify that the appeal be set down for hearing at a later date.

(2) An appellant whose appeal has been dismissed pursuant to subsection (1) may apply to have the order of dismissal set aside and the appeal set down for hearing.

(3) The Court may set aside an order of dismissal made under subsection (1) where

(a) it would have been unreasonable in all the circumstances for the appellant to have attended the hearing; and

(b) the appellant applied to have the order of dismissal set aside as soon as circumstances permitted the application to be brought but, in any event, not later than one hundred and eighty days after the day on which the order was mailed to the appellant.

[EMPHASIS ADDED]

18.21 (1) Sauf si elle est d'avis que les circonstances justifient que l'appel soit entendu à une date ultérieure, la Cour est tenue, à la demande de l'intimé et ce, que l'appelant en ait été avisé ou non, d'ordonner le rejet de l'appel si ce dernier ne comparaît pas à la date fixée pour l'audition ou n'obtient pas un ajournement.

(2) L'appelant dont l'appel a été rejeté peut demander qu'il soit repris et que l'ordonnance de rejet soit annulée.

(3) La Cour peut annuler l'ordonnance de rejet si les conditions suivantes sont réunies :

a) compte tenu de toutes les circonstances, il n'était pas raisonnable de s'attendre à ce que l'appelant soit présent à l'audition;

b) l'appelant a présenté sa demande d'annulation dès que cela a été possible, compte tenu des circonstances, mais dans tous les cas au plus tard cent quatre-vingt jours suivant la date de l'envoi par la poste de l'ordonnance rejetant son appel.

[LE SOULIGNÉ EST LE MIEN]

[5] As section 18.21 should be read in conjunction with section 18.2, I also reproduce the latter:

18.2 (1) The Court shall adjourn the hearing of an appeal where, in the opinion of the Court, it would be impractical in all the circumstances to proceed on the day fixed for the hearing.

(2) The Court may grant a request by a party to have the hearing fo an appeal adjourned where the other parties consent thereto or where it would be appropriate to delay that hearing until judgment has been rendered in another case before the Court or before any other court in Canada in which the issue is the same or substantially the same as that raised in the appeal.

]EMPHASIS ADDED]

18.2 (1) La Cour ajourne l'audition d'un appel lorsqu'elle est convaincue qu'il serait difficilement réalisable d'y procéder à la date fixée, compte tenu de toutes les circonstances.

(2) À la demande d'une des parties, la Cour peut accorder un ajournement si les autres parties y consentent ou encore s'il s'avère préférable de retarder l'audition jusqu'à ce qu'elle-même ou un autre tribunal canadien ait rendu jugement dans une affaire identique ou semblable.

[LE SOULIGNÉ EST LE MIEN]

[6] In Paynter v. Canada, [1996] F.C.J. 1416 (F.C.A.), Strayer J.A., writing for the Court, made the following remarks concerning the Tax Court's discretion to grant or refuse adjournments of appeals before the Court:

11. With respect to the power to adjourn given to the Court in subsection 18.2(2) where, as here, the other party consents, we believe there is no basis for interfering with the exercise of the Chief Judge's discretion in refusing the adjournment. Again, he was being asked, in the proceeding now under review, to grant an adjournment for one reason: the unexplained and untimely change fo solicitors and what logically flowed from that. We can see no wrong principle upon which he proceeded. He made specific reference to the approach of the Court to adjournments in informal proceedings and we consider this entirely appropriate. Section 18.2 which he was apply appears in that part of the Act dealing with the informal procedure. That procedure clearly contemplates expedition of process for taxpayers where small amounts are involved. It provides that a party may appear in person or by agent; that is, without lawyers (s. 18.14). No special form of appeal is required (s. 18.15). The times for the minister filing a reply, for the Court setting a date for the hearing, and for the rendering of judgment are all prescribed by the statute (ss. 18.16, 18.17, 18.22).These provisions make it clear that such appeals are not intended to move along at any leisurely pace chosen by the parties but are normally to be heard and disposed of in a quick and orderly fashion. This in our view not only colours the meaning to be given to the word "impractical" in subsection 18.2(1) but indicates also the scope of the discretion even to the Court under subsection 18.2(2) to refuse adjournments even when counsel all consent.

[EMPHASIS ADDED]

[7] In Dayan v. Canada, 2004 FCA 75, 23 February 2004, this Court discussed the Tax Court's discretion under subsection 18.21(2) to set aside dismissal orders made under subsection 18.21(1). At paragraphs 6 and 8 of her Reasons for the Court, Madam Justice Sharlow opined as follows:

[6] In an application under subsection 18.21(2) to set aside a dismissal order, the Tax Court Judge must consider whether the conditions in paragraphs 18.21(3)(a) and (b) are met. If they are not met, the application must be dismissed. If they are met, the Tax Court Judge must consider whether to exercise his discretion to grant the application. That the Tax Court Judge has such a residual discretion is indicated by the use of the word "may" in the opening words of subsection 18.21(3).

[...]

[8] For the purposes of the proceedings in this Court, I am prepared to assume, in the applicants' favour, that the Tax Court Judge reached the conclusion that the condition in paragraph 18.21(3)(a) was met, and that he dismissed their applications to set aside the dismissal orders on the basis of his residual discretion. It would follow that the issue before this Court is whether the Tax Court Judge, in exercising his discretion as he did, made an error that warrants the intervention of this Court. It is trite law that this Court will not reverse a discretionary order in the absence of an error of law or a failure to consider relevant factors.

[EMPHASIS ADDED]

[8] I also wish to make mine the reasons for judgment given by Marceau J.A. for the Court in Fortin v. Canada (Minister of National Revenue), [1997], F.C.J. No. 1222 (F.C.A.). Before the Court was an appeal from a decision of the Tax Court of Canada, which had refused to adjourn the hearing of the matter before it. In brief reasons, Marceau J.A. disposed of the appeal before the Court in the following terms:

1. We are of the opinion that this application for judicial review of a decision of a judge of the Tax Court of Canada cannot succeed.

2. It simply is not possible, in our view, to say that in declining, in the circumstances of this case, to adjourn the hearing of this application submitted by the applicant pursuant to the provisions of the Unemployment Insurance Act, albeit within the context of the informal procedure in the Tax Court of Canada, the presiding judge exercised his discretion in an unlawful or perverse manner.

3. The applicant"s right to be heard was not violated in any way, in our opinion: while the judgment was rendered in his absence, it was rendered on the day and in the place long provided, and if the applicant was not present he can blame only his own carelessness. His right to have a representative of his choice was not violated, either: his solicitor of record was present at the hearing. We can readily understand that the judge considered this indirect request for postponement, presented to him by proxy and to the surprise of everyone including the solicitor of record, to be inadequately motivated, and we do not think that in the circumstances the conditions exist that would allow us to intervene.

[EMPHASIS ADDED]

[9] It is clear from these decisions that this Court will not interfere with a Tax Court judge's decision to grant or refuse adjournments, unless the judge has erred in law or failed to consider all relevant factors. It is also clear from section 18.21 of the Act that an appellant who fails to appear at his hearing or fails to obtain an adjournment thereof, will see his appeal dismissed unless circumstances justify the setting down of the appeal at a latter date.

[10] Unfortunately for the appellant, I have not been persuaded that in refusing her request for an adjournment and, hence, dismissing her appeal for failure to appear, the Tax Court judge improperly exercised her discretion. Consequently, this appeal should be dismissed. In the circumstances, I would allow the respondent the sum of $500 in costs.

J.A.

"I agree.

Robert Décary J.A."

"I agree.

J. Denis Pelletier J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-529-03

STYLE OF CAUSE: Maria Sokolowska, Estate Trustee without a Will of Henry Sokolowski v. Her Majesty the Queen

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: January 19, 2005

REASONS FOR JUDGMENT BY: NADON J.A.

CONCURRED IN BY: DÉCARY J.A.

PELLETIER J.A.

DATE OF JUDGMENT: January 21, 2005

APPEARANCES:

Ms. Maria Sokolowska ON HER ON BEHALF

Mr. Ronald MacPhee

Ms. Joanna Hill FOR THE RESPONDENT

SOLICITORS OF RECORD:

Ms. Maria Sokolowska

Ottawa, Ontario ON HER OWN BEHALF

Mr. John Sims

Deputy Attorney General of Canada

Ottawa, Ontario FOR THE RESPONDENT

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Sokolowska (Estate) v. Canada, 2005 FCA 26

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2005 FCA 26