Christie
A.C.J.T.C.C.:-When
these
status
hearings
under
section
125
of
the
Tax
Court
of
Canada
Rules
(General
Procedure)
were
called
for
hearing
the
appellant
took
the
position
that
he
having
made
an
assignment
in
bankruptcy
these
appeals
were
stayed
by
operation
of
provisions
of
the
Bankruptcy
and
Insolvency
Act
("the
Act").
The
appellant
acted
on
his
own
behalf
at
the
status
hearings.
But
on
December
1,
1994,
Mr.
Philip
W.
Augustine,
of
Gibson
&
Augustine,
Barristers
&
Solicitors,
Ottawa,
sent
this
letter
to
the
Court:
As
you
know,
on
October
6,
1993
a
status
hearing
was
held
in
this
matter.
At
that
time,
it
was
directed
that
the
appeal
be
set
down
for
a
hearing
to
commence
at
9:30
a.m.
on
May
2,
1994.
On
December
17,
1993,
the
appellant
made
an
assignment
in
bankruptcy.
Pursuant
to
the
provisions
of
section
69
of
the
Bankruptcy
and
Insolvency
Act,
all
proceedings
are
stayed.
On
December
23,
1993
a
letter
was
sent
to
the
Tax
Court
of
Canada
advising
the
Tax
Court
of
Canada
of
the
stay
of
court
file
number
93-38G.
On
January
24,
1994
you
wrote
to
the
trustee
in
bankruptcy
and
indicated
that
its
"request"
had
been
denied
and
that
the
matter
was
to
proceed
on
May
2,
1994.1
wrote
to
you
on
February
10,
1994
indicating
that,
as
a
matter
of
law,
it
was
impossible.for
this
matter
to
proceed
as
the
Bankruptcy
and
Insolvency
Act
prohibited
the
matter
from
proceeding.
I
enclose
herewith
a
copy
of
my
letter
dated
February
10,
1994.
On
February
22,
1994
you
indicated
that
the
matter
would
be
adjourned
sine
die
and
reviewed
again
on
September
1,
1994.
There
is
nothing
which
has
happened
in
the
meantime
which
in
any
way
changes
the
status
of
this
matter.
Mr.
Sheehan
is
bankrupt.
The
Bankruptcy
and
Insolvency
Act
stays
both
of
these
actions.
If
necessary,
I
will
appear
before
the
Court
and
repeat
this
position,
but
I
have
no
instructions
from
the
trustee
to
proceed
with
this
matter
and
Mr.
Sheehan
has
no
legal
capacity
to
instruct
me.
Accordingly,
I
would
ask
that
you
confirm
that
this
matter
is
stayed
and
that
it
will
not
be
necessary
for
me
to
attend
the
status
hearing
which
has
been
scheduled
for
February
6,
1995.
In
my
opinion
subsection
69.3(1)
has
no
application
to
these
appeals.
They
do
not
involve
a
creditor
of
the
appellant
seeking
a
remedy
against
him
or
his
property.
Nor
do
they
involve
a
creditor
commencing
or
continuing
an
action,
execution
or
other
proceeding
for
the
recovery
of
a
claim
provable
in
bankruptcy.
What
is
involved
is
a
bankrupt
taxpayer
seeking
to
continue
appeals
that
he
has
instituted
under
the
Income
Tax
Act
challenging
reassessments
made
by
the
Minister
of
National
Revenue
under
that
Act
regarding
his
liability
to
tax.
Paragraph
128(2)(a)
of
the
Income
Tax
Act
provides
that
where
an
individual
has
become
a
bankrupt
the
trustee
in
bankruptcy
shall
be
deemed
to
be
the
agent
of
the
bankrupt
for
all
purposes
of
this
Act.
While
this
paragraph
indicates
that
prima
facie
the
trustee
in
bankruptcy
has
management
and
control
over
the
litigation
at
hand,
that
can
be
relinquished
if
he
chooses
to
do
so
thereby
removing
any
impediment
under
the
Act
to
the
bankrupt
carrying
on
the
litigation:
Leith
v.
M.N.R.,
[1970]
Tax
A.B.C.
204,
70
D.T.C.
1144
(T.A.B.).
The
trustee
in
bankruptcy
is
D.
&
A.
MacLeod
Company
Ltd.
By
letter
dated
January
31,
1994,
Mr.
Michael
H.
Kalinowski,
senior
bankruptcy
administrator
with
the
corporation,
informed
the
registrar
of
this
Court
as
follows:
Re:
Charles
P.
Sheehan
v.
The
Queen
92-523G;
93-38G
Thank
you
for
your
letter
of
January
24,
1994
regarding
a
stay
of
proceedings
with
respect
to
the
above
action.
This
is
to
advise
you
that
the
trustee
has
no
interest
in
this
action
and
will
not
be
participating
on
behalf
of
Mr.
Sheehan.
We
have
advised
Mr.
Sheehan
that
he
should
appear
in
Court
on
Monday,
May
2,
1994
at
9:30
a.m.
as
scheduled.
If
you
have
any
questions
or
wish
to
discuss
this
matter
further
please
do
not
hesitate
to
contact
the
undersigned.
Although
the
letter
suggests
that
there
is
only
one
appeal,
there
are
in
fact
two
and
both
are
correctly
identified
in
the
subject
line
of
the
letter.
At
the
status
hearings
a
trial
date
was
set
as
were
dates
for
the
completion
of
any
remaining
steps
prior
to
the
hearing
of
the
appeals.
It
was
understood
that
if
the
Court
concluded
that
the
Act
did
not
operate
to
stay
these
proceedings,
an
order
would
issue
incorporating
those
dates.
Due
to
intervening
circumstances
not
foreseen
at
the
time
of
the
status
hearing
it
has
been
necessary
to
make
some
adjustments
to
those
dates,
after
consultation
with
the
parties.
An
order
shall
issue
incorporating
those
adjustments.
Order
accordingly
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