Date: 20050816
Docket: A-89-05
Citation: 2005 FCA 274
Present: SHARLOW J.A.
BETWEEN:
JANUSZ J. BUJNOWSKI
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario on August 16, 2005.
REASONS FOR ORDER BY: SHARLOW J.A.
Date: 20050816
Docket: A-89-05
Citation: 2005 FCA 274
Present: SHARLOW J.A.
BETWEEN:
JANUSZ J. BUJNOWSKI
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1] There have been numerous disputes and misunderstandings in this case about the contents of the appeal book. I hope that the disposition of the motion now before me will put an end to these procedural difficulties.
[2] Mr. Bujnowski was reassessed for 2001 on the basis that he was to be taxed as a resident of Canada for that year, and that he was not entitled to a foreign tax credit for that year as he had claimed. Mr. Bujnowski appealed to the Tax Court of Canada under the informal procedure of that Court by filing a Notice of Appeal on March 10, 2004. The Crown filed a Reply on June 28, 2004. Mr. Bujnowski filed a "Response" on September 28, 2004, which was accepted for filing even though the informal rules of the Tax Court of Canada do not provide for the filing of a response to the Crown's reply.
[3] Mr. Bujnowski's appeal was heard on October 6, 2004 and January 10, 2005. It was allowed in part. The Judge concluded that the Crown was correct in treating Mr. Bujnowski as a resident of Canada for income tax purposes, but that he should have been allowed a foreign tax credit. The amount of the foreign tax credit was fixed at $14,787.28 in a Tax Court judgment dated January 27, 2005, but that amount was changed to $12,426.79 in an amended Tax Court judgment dated March 31, 2005. Mr. Bujnowski has now appealed to this Court.
[4] Mr. Bujnowski and counsel for the Crown could not agree on the contents of the appeal book, and so on April 6, 2005, Mr. Bujnowski brought a motion to have the contents determined by the Court. I will refer to this as the first motion. On May 6, 2005, this Court disposed of the first motion by making an order determining the contents of the appeal book. Two of the items to be included were:
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(a) certified copies of the pleadings filed with the Tax Court of Canada, consisting of the Notice of Appeal and Reply to the Notice of Appeal;
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[...]
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(d) the complete transcript of evidence before the Tax Court of Canada from the hearing held on October 6, 2004 and January 10, 2005.
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[5] With respect to item (a), there was an issue as to whether the appeal book should include the "response" filed by Mr. Bujnowski in the Tax Court. The Crown argued that the "response" was not part of the pleadings and was not properly before the Tax Court because the Tax Court Rules (Informal Procedure) did not allow for a response. Mr. Bujnowski argued that since the "response" had been accepted and filed by the Court, it should be in the appeal book. The order of May 6, 2005 indicates that the Judge agreed with the Crown on this point.
[6] Item (d) clearly was intended to ensure that the appeal book would include the transcript of all oral testimony presented in the Tax Court, either in direct examination or cross-examination, but would exclude legal arguments and submissions. That is the normal practice where transcripts are included in an appeal book.
[7] On May 16, 2005, Mr. Bujnowski filed a notice of motion (the second motion) for reconsideration of the May 6, 2005 order. He asked for reconsideration of the portion of the order dealing with costs, and also asked that his "response" be included in the appeal book. On June 29, 2005, this Court dismissed the second motion.
[8] On June 10, 2005, before his second motion had been dealt with, Mr. Bujnowski served and filed the appeal books, in two volumes. The first volume, contrary to item (a) of the May 6, 2005 order, included the "response". The second volume, contrary to item (d) of the May 6, 2005 order, included only portions of the transcript of evidence and included parts of the submissions that had been made in the Tax Court on January 10, 2005.
[9] Now before me is a motion by Mr. Bujnowski (the third motion) for an extension of time to serve and file Volume III of the appeal book, which appears to contain other extracts from the transcript of evidence.
[10] The affidavit of Annie Paré, sworn on July 29, 2005 and filed by the Crown in response to the third motion, indicates that the excerpts in Mr. Bujnowski's intended Volume III, combined with the excerpts in Volume II already filed, still do not comprise a complete transcript of all of the oral testimony. Thus, granting the third motion would contradict the May 6, 2005 order.
[11] It is not clear to me from the record whether Mr. Bujnowski's failure to comply with the May 6, 2005 order of this Court is the result of his inability to understand that he is bound by the rules and orders of this Court, or is a deliberate attempt to produce an inaccurate record. In my view, it is more important at this stage to make an order that will ensure that this appeal is made ready for hearing in the most efficient possible manner.
[12] Appended to Ms. Paré's affidavit, as exhibits J and K, are documents that she says are the full transcripts of the testimony on October 6, 2004 and January 10, 2005. I will make an order under Rule 343(5) that the Administrator prepare an appendix to the appeal book, which will contain exhibits J and K of the affidavit of Annie Paré, sworn on July 29, 2005.
[13] I will also direct the Registry to remove from Volume I of the appeal book filed by Mr. Bujnowski the "response" that should not have been included in that volume (pages 36, 37, 38 and 39), and to remove Volume II of the appeal book entirely from the Court file.
[14] These changes to the appeal book may require some changes to Mr. Bujnowski's memorandum of fact and law, which has already been filed. The order will permit sufficient time for him to serve and file an amended memorandum of fact and law. That will automatically extend the time for serving and filing the respondent's memorandum of fact and law.
[15] Costs of this motion will be costs in the cause.
"K. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-89-05
STYLE OF CAUSE: JANUSZ J. BUJNOWSKI and HER MAJESTY THE QUEEN
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: SHARLOW J.A.
DATED: August 16, 2005
WRITTEN REPRESENTATIONS BY:
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Mr. Janusz J. Bujnowski
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FOR THE APPELLANT
SELF-REPRESENTED
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Mr. Franco Calabrese
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Janusz J. Bujnowski
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FOR THE APPELLANT
SELF-REPRESENTED
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John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario
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FOR THE RESPONDENT
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