Docket: A-51-14
Citation: 2016 FCA 25
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CORAM:
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TRUDEL J.A.
STRATAS J.A.
RYER J.A.
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BETWEEN:
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WILLIAM A.
KELLY
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Appellant
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and
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HER MAJESTY THE
QUEEN
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Respondent
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REASONS FOR
JUDGMENT
TRUDEL J.A.
[1]
Mr. Kelly was not present for the hearing of his
appeal. Counsel for parties also affected by the judgment under appeal, whose
consolidated appeals were heard immediately after this one, informed the Court
that Mr. Kelly was hospitalized and unable to attend the hearing.
[2]
Counsel for these other parties also relayed Mr.
Kelly’s verbal request that his appeal be heard on the basis of the Amended
Memorandum of Fact and Law filed by counsel on behalf of her clients. The respondent
objected to this request.
[3]
Mr. Kelly’s request was denied. It was decided
that the appeal would be disposed of on the basis of the written submissions
and material filed by Mr. Kelly and the respondent before the de-consolidation
of this appeal and appeals A-53-14 and A-52-14.
[4]
These are the reasons dismissing Mr. Kelly’s
appeal.
[5]
In a judgment cited as 2013 TCC 411, Graham J.
for the Tax Court of Canada dismissed Mr. Kelly’s appeal from the Minister of
National Revenue’s denial of limited partnership losses he claimed in the late
1990s. He did so by way of a motion brought by the Crown under Rule 64 of the Tax
Court of Canada Rules (General Procedure) SOR/90-688a (Rules), which
provides that where the appellant has failed to prosecute with due dispatch, an
appeal may be dismissed for delay.
[6]
Mr. Kelly filed his Notice of Appeal on May 21,
2009, and the parties were ordered on June 14, 2010 to meet certain deadlines
in the litigation process. Although Mr. Kelly served onto the Crown his list of
documents, he did not meet the deadline to prove service, and did not seek an
extension of time.
[7]
He was later served with notices to attend
examination for discovery on two occasions, and in both cases indicated that he
would not attend with, respectively, two and three days’ notice. On the first
occasion, the Crown prepared a Request to Amend Timetable Order and agreed
reschedule to Mr. Kelly’s proposed date. The request was granted by the Tax
Court on November 10, 2010. After Mr. Kelly indicated the second time that he
would fail to attend examination for discovery, the Crown declined to
reschedule, and obtained a certificate of non-attendance on January 19, 2011.
[8]
In March, 2011, Mr. Kelly’s appeal was added to
a larger group of similar appeals under case management. Nothing further
happened until a status hearing was held on April 3, 2012. The Court ordered a
deadline of January 31, 2013 to satisfy undertakings given at examination for
discovery.
[9]
Once again, Mr. Kelly did not meet the deadline
to satisfy his undertakings nor did he seek an extension from the Court. The
Crown brought its motion to dismiss for delay on August 7, 2013, after the Tax
Court denied its March 28, 2013 request for a show cause hearing. Mr. Kelly
provided responses to his undertakings on October 22, 2013, before the motion
to dismiss was heard.
[10]
The Tax Court found that the answers he provided
were nonetheless unresponsive (Tax Court Reasons at paragraph 27).
[11]
Mr. Kelly argued before the Tax Court and again in
his Memorandum of Fact and Law that his failure to satisfy his undertakings
should be excused because the Crown did not provide a list of those
undertakings subsequent to examination for discovery. He argues further that
Graham J. erred by applying an unduly technical and formalistic analysis, and
that he should not have considered any of the events prior to the April 3, 2012
status hearing by virtue of issue estoppel.
[12]
I see no merit to any of Mr. Kelly’s arguments.
As Graham J. stated, the Crown had no obligation to provide Mr. Kelly with a
list of his undertakings, and clearly indicated that it would not do so. He was
in no way absolved of his responsibility to determine and to satisfy his
undertakings by the deadline, or to bring a motion for an extension of time
based on a compelling reason. He did neither.
[13]
Graham J. demonstrated a careful consideration
of the evidence in his reasons for exercising discretion to allow the Crown’s
motion. There is no cause to interfere with his conclusion that Mr. Kelly’s
pattern of conduct demonstrates such indifference to the prosecution of his
appeal and to the orders of the Tax Court that dismissal under Rule 64 was
justified.
[14]
Further, Graham J. was correct to conclude that
issue estoppel does not assist Mr. Kelly and it was appropriate to consider the
full history of the appeal when determining the merits of the motion (see 1196158
Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544 at paragraph 25).
[15]
For these reasons, I would dismiss this appeal
with costs.
"Johanne Trudel"
“I agree.
David Stratas J.A.”
“I agree.
C.
Michael Ryer J.A.”
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