Date: 20050321
Docket: A-286-04
Citation: 2005 FCA 108
Present: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
GERALD D. WEBSTER
Applicant
and
HER MAJESTY THE QUEEN
Respondent
"Dealt with in writing without appearance of parties."
Order delivered at Ottawa, Ontario, on March 21, 2005.
REASONS FOR ORDER BY: PELLETIER J.A.
Date: 20050321
Docket: A-286-04
Citation: 2005 FCA 108
Present: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
GERALD D. WEBSTER
Applicant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
PELLETIER J.A.
[1] The Crown, respondent in the appeal, brings a motion to strike most of the paragraphs on the applicant's affidavit. The applicant has filed an affidavit because, while this is an appeal, it is in the form of a Notice of Application.
[2] The Crown is pursuing the applicant for unpaid GST which it alleges he owes in his capacity as a director of the primary debtor, a corporation. The applicant's defence is that he had ceased to be a director at the material times. When negotiations to resolve the issue failed, the applicant filed his notice of objection and the matter was set down for hearing on June 25, 2004. When the case was called, the applicant was not present in Court. At the request of the Crown, the appeal was dismissed.
[3] The applicant learned of the dismissal and made a motion to have the dismissal set aside. That motion was set for hearing on November 18, 2004. Once again, when the motion was called the applicant was not present. The motion was dismissed. Two days later, the applicant appeared and explained that his failure to appear on the hearing date was due to the fact that he had mis-diarized the hearing. The presiding judge, who had already dismissed the motion, nonetheless heard the applicant on the merits of the motion. In the end, the presiding judge dismissed the motion to set aside the dismissal of the appeal.
[4] The applicant has appealed from the dismissal of the motion to set aside the judgment dismissing the appeal. Because the appeal is by way of a notice of application, Part V of the Federal Court Rules, 1998 applies so that the Rules call for the applicant to file an affidavit. Objection is taken to the applicant's affidavit because it contains material which was not before the judge who heard the motion. The paragraphs which the Crown seeks to have struck set out the facts upon which the applicant would rely in the appeal of the assessments.
[5] The Crown relies upon the jurisprudence which deals with the record in an application for judicial review. It says that the record is limited to the applicant's evidence before the presiding judge as to the reasons for his failure to appear at the hearing scheduled for June 25, 2004.
[6] The Applicant argues that the facts in question are not tendered in an attempt to have the applicant's liability for the tax decided, but merely to show that the appeal has merit. The applicant argues that the judge was bound to address himself to the merits of the appeal when deciding whether to set aside the judgment dismissing the appeal.
[7] In my view, the interests of justice will best be served if the applicant's affidavit is left as it is. If the offending passages are struck, then this Court is limited in what it can do if the appeal is successful. It will have to refer the matter back to the Tax Court of Canada for a decision as to whether the judgment dismissing the appeal should be set aside, having regard to all the circumstances, including the merits of the appeal. The Tax Court of Canada's decision on that issue is subject to appeal, which means that the applicant could be many months away from a decision on the merits of his appeal, if he is entitled to one at all. On the other hand, if the affidavit is left in its present state, and if the appeal is successful, this Court would be in a position to make the decision which the presiding judge could have made. It could consider the factors which were before the presiding judge, as well as the possible merits of the appeal, and either set aside the judgment dismissing the appeal, or affirm it. If the judgment is set aside, the matter will be remitted to the Tax Court of Canada for a hearing on the merits, and the applicant will have his hearing without further expense and delay. If it is affirmed, then this matter is at an end without the necessity of another hearing before the Tax Court of Canada.
[8] For these reasons, I am prepared to allow the applicant's affidavit to remain in its present form for the limited purpose of allowing the applicant to argue that, prima facie, his appeal has some merit.
[9] In the end result, the motion is dismissed with costs to be costs in the cause.
"J.D. Denis Pelletier"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-286-04
STYLE OF CAUSE: GERALD D. WEBSTER and HER MAJESTY THE QUEEN
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: THE HONOURABLE MR. JUSTICE PELLETIER
DATED: March 21, 2005
WRITTEN REPRESENTATIONS BY:
|
Mr. John M. Henderson
Mr. Jack M. Blackier
|
FOR THE APPLICANT
|
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Ms. Cecil Woon
|
FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Barry Spalding
Saint John, NB
|
FOR THE APPLICANT
|
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John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario
|
FOR THE RESPONDENT
|
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