Date: 20040924
Docket: A-528-03
Citation: 2004 FCA 318
Present: LÉTOURNEAU J.A.
BETWEEN:
ELWIRA SOKOLOWSKA
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on September 24, 2004.
REASONS FOR ORDER BY: LÉTOURNEAU J.A.
Date: 20040924
Docket: A-528-03
Citation: 2004 FCA 318
Present: LÉTOURNEAU J.A.
BETWEEN:
ELWIRA SOKOLOWSKA
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
LÉTOURNEAU J.A.
[1] The appellant attacked, by way of appeal, a decision of the Tax Court of Canada rendered on October 9, 2003. The Notice of Appeal was filed on November 5, 2003. The challenge relates to tax assessments for the 1999, 2000 and 2001 taxation years.
[2] On January 15, 2004, Noël J.A. requested the registry to inform the appellant that she was in breach of Rules 119 and 121 of the Federal Court Rules, 1998 in that her mother, Mrs. Maria Sokolowska, who was appearing on her behalf, could not represent her without leave from the Court.
[3] It is only on April 27, 2004 that a Motion Record was finally received by the registry requesting that Mrs. Sokolowska be authorized to represent the appellant. Pursuant to a Direction issued by Sexton J.A. on April 29, 2004, the Motion Record was not accepted for filing because the affidavit had not been properly executed and there was no indication in the material that the appellant approved of representation by Mrs. Maria Sokolowska.
[4] On May 13, 2004, Evans J.A. noticed that, pursuant to the Direction by Sexton J.A. dated April 29, 2004, no subsequent motion had been filed respecting the representation of the appellant in the file. Rules 119 and 121 had not still been complied with. Consequently, Evans J.A. issued an Order requesting that the appellant
a) inform the Court, no later than May 28, 2004 as to how she intended to proceed in view of Rule 119 which requires that the appellant act in person or be represented by a solicitor; and
b) serve and file a motion requesting an extension of time for filing an Application Record if the appellant wished to proceed with the appeal.
[5] The Order specifically mentioned that failure to comply with it would result in the dismissal of the appeal. There was no compliance with this Order.
[6] On July 30, 2004, the Court issued, pursuant to Rule 381 of the Federal Court Rules, 1998, a Notice of Status Review requiring the appellant to show cause why the appeal should not be dismissed for failure to prosecute diligently since more than six months had elapsed since the filing of the Notice of Appeal and literally nothing had been done to move the appeal forward.
[7] On August 24, 2004, the Court was informed in a six-line letter that it was the appellant's intention to proceed and a Motion Record was served and filed on the same occasion. No reasons were given as to why the case was not moved forward, no good excuse for the delay was provided and no measures were proposed to ensure that the appeal would be pursued diligently: see these requirements in Baroud v. Canada (Min. of Citizenship and Immigration) (1998), 160 F.T.R. 91 (F.C. T.D.); Grenier v. Canada, [2001] 2 F.C. D-47 (Fed. C.A.).
[8] As for the Motion Record filed on August 24, 2004, it seeks leave of this Court authorizing Mrs. Maria Sokolowska to represent the appellant and the granting of an extension of time to serve and file her Application Record. In other words, it does now what should have been done by May 28, 2004 as ordered by Evans J.A. Since the inception of the appeal on November 5, 2003, there has practically been no progress at all in this file.
[9] No Application Record has been served and filed by the appellant. In fact, Rule 309 of the Federal Court Rules, 1998 has not been complied with by the appellant and the prosecution is almost at the same and initial stage that it was on November 5, 2003.
[10] A great deal of energy has been spent and wasted by the registry, the respondent and this Court on this file.
[11] Failure to comply with Orders or Directions from this Court and with the Rules of procedure as well as omission to provide a good justification for the delays and an action plan to speedily move the appeal forward justifies a dismissal of the appeal. There is a limit to taxing scarce and limited judicial resources. I must say that I am very tempted to dismiss it. However, I will give the appellant one last chance but under strict conditions which will ensure compliance with the Federal Court Rules, 1998 and a diligent prosecution of the appeal.
[12] I will grant the extension of time and order the appellant to peremptorily file and serve her Application Record not later than October 18, 2004, failing which the appeal will be dismissed without further notice. Leave authorizing Mrs. Maria Sokolowska to represent the appellant is denied although Mrs. Sokolowska may provide assistance to the appellant at the hearing.
"Gilles Létourneau"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-528-03
STYLE OF CAUSE: ELWIRA SOKOLOWSKA v. HER MAJESTY THE QUEEN
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: LÉTOURNEAU J.A.
DATED: September 24, 2004
WRITTEN REPRESENTATIONS BY:
SOLICITORS OF RECORD:
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Morris Rosenberg
Department of Justice Canada
Ottawa, Ontario
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FOR THE RESPONDENT
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