Turner v. Canada, 2002 FCA 507

Date: 20021218

Docket: A-648-01

Neutral citation: 2002 FCA 507

CORAM:        Sharlow J.A.

BETWEEN:

                                                                     FRED TURNER

                                                                                                                                                       Appellant

                                                                                 and

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                   Respondent

                                            Dealt with in writing without appearance of parties

                                     Order delivered at Ottawa, Ontario, December 18, 2002

REASONS FOR ORDER BY:                                                                                         SHARLOW J.A.

Date: 20021218

Docket: A-648-01

Neutral citation: 2002 FCA 507

CORAM:        Sharlow J.A.

BETWEEN:

                                                                     FRED TURNER

                                                                                                                                                       Appellant

                                                                                 and

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

Sharlow J.A.

[1]                 The appellant successfully appealed a negative decision of the Tax Court relating to an income tax appeal, and was awarded costs. His bill of costs was presented at $265,700. An assessment officer allowed costs of $2,381.22. The appellant challenged the award of costs, but his motion was dismissed by Justice Nadon. The appellant has appealed Justice Nadon's decision.

[2]                 A notice of status review was issued on May 5, 2002. On June 13, 2002, Justice Evans considered submissions made in response to the notice of status review and set a timetable for the steps required to prepare the appeal for hearing. According to that order:

(A)       the appeal book was to be served and filed by August 14, 2002,

(B)       the appellant's memorandum of fact and law was to be served and filed by September 13, 2002,

(C)       the respondent's memorandum of fact and law was to be served and filed by October 15, 2002, and

(D)       the appellant was required to serve and file the requisition for hearing by November 4, 2002.

[3]                 The appeal book was not filed on time, apparently because the parties could not agree on its contents. The contents were settled by the order of Justice Sexton on August 26, 2002. It appears that the appeal book was filed on September 17, 2002, over one month late according to the original timetable.

[4]                 On October 4, 2002, counsel for the respondent wrote to the Court to advise that the appellant's memorandum of fact and law had not been filed, and asking whether the failure to meet the September 13, 2002 deadline for filing the appellant's memorandum would result in dismissal of the appeal. The appellant served and filed his memorandum on October 8, 2002, almost one month late. By order of Justice Evans, the late filing was accepted.

[5]                 According to the June 13, 2002 order of Justice Evans, the respondent's memorandum should have been served and filed by October 15, 2002. It was filed on November 5, 2002, a little over three weeks late.

[6]                 On November 18, 2002, the appellant filed a notice of motion for an order removing the respondent's memorandum from the court file and for an order for an "investigation or inquiry" into the "misconduct" of Registry staff. The appellant argues that the Registry should not have accepted the respondent's memorandum for filing because it had not been served.

[7]                 On the same date, the respondent filed a notice of motion, ex parte, for an order extending to November 18, 2002 the time for service of the respondent's memorandum, and validating late service by ordinary mail. The affidavit filed with the respondent's material indicates that the memorandum was sent to the appellant by ordinary mail on November 18, 2002. The memorandum also alleges that service by courier and by fax was attempted, but without success. The respondent alleges that the failure of service by those methods was the fault of the appellant. I do not consider it necessary to reach any conclusion on that allegation.

[8]                 At this point, it appears to me that the appellant has the respondent's memorandum. He has not alleged that he has suffered any real prejudice by virtue of not having the respondent's memorandum in hand by November 8, 2002. His argument seems to be that the court should not tolerate any failure by the respondent to abide by the rules, because the respondent has ample resources. The appellant has submitted a litany of allegations of improper conduct by the respondent. I do not consider it necessary to reach any conclusion on those allegations.

[9]                 The fact is that the timetable for the steps to be taken in this matter became difficult to adhere to once there was a delay in relation to the appeal book. Neither party is at fault for that dispute. Both parties should have realized that changes should be made to the timetable. Either of them could have sought an amendment to the timetable, but neither of them did.

[10]            As a result of the delay in completing the appeal book, the appellant filed his memorandum late, and Justice Evans permitted the late filing. The respondent then filed its memorandum late, and also failed to effect timely service. However, there is no evidence that the appellant has been prejudiced. Given the history of this matter, I think it appropriate to consider Rule 3 of the Federal Court Rules, 1998, which reads as follows:

[11]            With Rule 3 in mind, I will again waive strict compliance with the original timetable. The appellant's motions will be denied. Service of the respondent's memorandum will be validated.

[12]            The last remaining step is the filing of the requisition for hearing. The appellant will be required to serve and file the requisition for hearing on or before January 15, 2003. The preparation of a requisition for hearing requires reasonable cooperation between the parties. I assume the parties will be able to achieve that, despite their apparent animosity. No costs will be awarded on any of these motions.

  

"K. Sharlow"

J.A.

  

                                                    FEDERAL COURT OF APPEAL

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

    

DOCKET:                                             A-648-01

STYLE OF CAUSE:                           FRED TURNER and HER MAJESTY THE QUEEN

                                                                                   

DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

PLACE OF HEARING:                     Ottawa, Ontario

  

REASONS FOR Order :                  Sharlow J.A.

  

DATED:                                                Decembeer 18, 2002

    

APPEARANCES:

Fred Turner                                                                                     FOR THE APPELLANT

(On his own behalf)

David Besler                                                                                    FOR THE RESPONDENT

  

SOLICITORS OF RECORD:

Fred Turner

Yellowknife NT                                                                              FOR THE APPELLANT

Morris Rosenberg

Deputy Attorney General                                                              FOR THE RESPONDENT