Webster v. Canada, 2007 FCA 203

Date: 20070528

Docket: A-286-04

Citation: 2007 FCA 203

CORAM:       LÉTOURNEAU J.A.

                        NADON J.A.

                        PELLETIER J.A.

BETWEEN:

GERALD D. WEBSTER

Appellant

and

HER MAJESTY THE QUEEN

Respondent

Heard at Fredericton, New Brunswick, on May 28, 2007.

Judgment delivered from the Bench at Fredericton, New Brunswick, on May 28, 2007.

REASONS FOR JUDGMENT OF THE COURT BY:                                             PELLETIER J.A.

Date: 20070528

Docket: A-286-04

Citation: 2007 FCA 203

CORAM:       LÉTOURNEAU J.A.

                        NADON J.A.

                        PELLETIER J.A.

BETWEEN:

GERALD D. WEBSTER

Appellant

and

HER MAJESTY THE QUEEN

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Fredericton, New Brunswick, on May 28, 2007)

PELLETIER J.A.

[1]               This is an appeal from the dismissal of a motion seeking to set aside the dismissal of the appellant's appeal for failure to appear.

[2]               In order to succeed in this appeal, the appellant must persuade us that the Tax Court judge did not properly exercise his discretion when he dismissed the appellant's motion.

[3]               Section 18.21(3) of the Tax Court of Canada Act provides that an order dismissing an appeal for failure to appear may be set aside if (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.

[4]               Consequently, the appellant needed to convince the Tax Court judge that he had a reasonable excuse for failing to appear at the hearing of this appeal. The Tax Court judge concluded that the appellant could have reasonably attended at the hearing of his appeal. On the basis of the record before the Tax Court judge, we are unable to say that the judge did not properly exercise his discretion.

[5]               The appellant attempted to persuade us that his appeal has merit. It may well but as this Court decided on Dayan v. Canada, 2004 FCA 75, [2004] F.C.J. No. 302, that fact does not dispense the appellant from complying with the requirements of section 18.21.

[6]               As a result the appeal will be dismissed with costs.

"J.D. Denis Pelletier"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                              A-286-04

APPEAL FROM AN ORDER OF MR. JUSTICE O'CONNOR OF THE TAX COURT OF CANADA DATED DECEMBER 5, 2003

STYLE OF CAUSE:                                                              GERALD D. WEBSTER and HER MAJESTY THE QUEEN

PLACE OF HEARING:                                                        Fredericton, New Brunswick

DATE OF HEARING:                                                          May 28, 2007

REASONS FOR JUDGMENT OF THE COURT BY:       LÉTOURNEAU J.A.

                                                                                                NADON J.A.

                                                                                                PELLETIER J.A.

DELIVERED FROM THE BENCH BY:                            PELLETIER J.A.

APPEARANCES:

SOLICITORS OF RECORD: