Paynter v. R., [1997] 1 CTC 118, 96 DTC 6578

Strayer J.A.: — This is an application for judicial review of a decision of September 27, 1996 of the Chief Judge of the Tax Court of Canada in which he refused the request for an adjournment of the hearing of the applicants’ eight appeals which was to take place October 9, 1996. In the circumstances the matter is essentially moot but, given the importance of the issue involved, we will state the reasons for our decision to dismiss the application.

These applicants commenced their appeals in 1992 under the informal procedures of the Tax Court. All the appeals involve the possible application to them of the exemption from income tax under paragraph 87(1 )(b) of the Indian Act.

These appeals were in abeyance for several years, by agreement of the parties and the consent of the Tax Court, in anticipation of the same issues being determined in a ninth appeal proceeding under the general procedure of that Court. That appeal was dropped in 1995. It appears that none of the present parties sought the fixing of a hearing date in the eight appeals under the informal procedure. On August 6, 1996, however, they were advised by the Tax Court that these appeals would be heard on October 9, 1996.

About one month later, on September 5, 1996 the then solicitor for the applicants wrote to the Tax Court asking for an adjournment because settlement discussions were under way. Counsel for the respondent consented to such an adjournment, but the adjournment was refused by letter of the Court dated September 17, 1996.

During September the applicants’ former counsel was replaced by present counsel from a different firm. The latter approached the Tax Court again for an adjournment and on September 27, 1996 the Chief Judge held a hearing by telephone conference call involving counsel for the respondent as well. A transcript of that hearing is on the file and embodies the decision which again refused the adjournment although the respondent did not object to it.

The applicants then filed the present application in this Court seeking judicial review of the refusal of the adjournment. On October 7, they obtained from Isaac C.J. a stay of the appeal hearing, pending the hearing of this application, subject to the applicants undertaking to apply to the Tax Court for a new hearing date by November 30, 1996.

On the present hearing counsel for the respondent has not opposed the application for judicial review. She takes the position that the adjournment should have been granted because there are important issues involved in the appeals which may have widespread implications. She considers that the issues may be better addressed if the parties all have more preparation time. It is clear, however, that neither the Tax Court nor this Court is bound by the consent of all parties to an adjournment. [1]

The essential issues we most address arise out of section 18.2 of the Tax Court of Canada Act which provides as follows:

18.2(1) The Court shall adjourn the hearing of an appeal where, in the opinion of the Court, it would be impractical in all the circumstances to proceed on the day fixed for the hearing.

(2) The Court may grant a request by a party to have the hearing of an appeal adjourned where the other parties consent thereto or where it would be appropriate to delay that hearing until judgment has been rendered in another case before the Court or before any other court in Canada in which the issue is the same or substantially the same as that raised in the appeal. R.S., 1985, c. 51 (4th Supp.), s. 5.

With respect to subsection 18.2(1) we are being asked to determine that the learned Chief Judge was obliged to find that it would be “impractical” for the appeal to proceed on October 9, 1996. This appears to involve a question of law or of mixed law and fact. It must be kept in mind that the decision of the Tax Court addressed in the originating notice of motion is that of September 27, 1996, and in reviewing it we are limited to the facts as submitted to the learned Chief Judge at that time. It is clear from reading the transcript that the submission of counsel as to a hearing on October 9 being “impractical” was based solely on the fact that he had only been retained three days previously, presumably on September 24, 1996. No explanation was given for this untimely change of solicitors other than a bare statement that it “was necessary for the other lawyer to withdraw”. He gave various reasons why it would be impossible for him to proceed, these being fairly common consequences flowing from such a short time for preparation. The learned Chief Judge said that the Court did not grant adjournments in informal proceedings except for “major reasons”

and the fact that you have received a mandate only three days ago...is not in the eyes of the Court a major reason.

Having regard to the fact that the Chief Judge was ruling extemporaneously and orally, we understand this to mean that the mere explanation that there has been a change of solicitor shortly before the hearing of an appeal does not of itself make “impractical” the hearing as scheduled. We do not understand the Chief Judge to be saying that a late change of solicitors could never render impractical the hearing, but that without some justification it could not be a determining factor. We are unable to say that such an interpretation of the term “impractical” is legally wrong. It obviously need not be interpreted to include every situation where a party has created the very problem causing him difficulties in proceeding.

With respect to the power to adjourn given to the Court in subsection 18.2(2) where, as here, the other party consents, we believe there is no basis for interfering with the exercise of the Chief Judge’s discretion in refusing the adjournment. Again, he was being asked, in the proceeding now under review, to grant an adjournment for one reason: the unexplained and untimely change of solicitors and what logically flowed from that. We can see no wrong principle upon which he proceeded. He made specific reference to the approach of the Court to adjournments in informal proceedings and we consider this entirely appropriate. Section 18.2 which he was applying appears in that part of the Act dealing with the informal procedure. That procedure clearly contemplates expedition of process for taxpayers where small amounts are involved. It provides that a party may appear in person or by agent; that is, without lawyers (s.18.14) No special form of appeal is required (s.18.15). The times for the minister filing a reply, for the Court setting a date for the hearing, and for the rendering of judgment are all prescribed by the statute (ss.18.16, 18.17, 18.22). These provisions make it clear that such appeals are not intended to move along at any leisurely pace chosen by the parties but are normally to be heard and disposed of in a quick and orderly fashion. This in our view not only colours the meaning to be given to the word “impractical” in subsection 18.2(1) but indicates also the scope of the discretion given to the Court under subsection 18.2(2) to refuse adjournments even where counsel all consent.

We therefore will dismiss the application for judicial review. As the date originally fixed for the hearing of the appeal, October 9, has now passed, and as the parties agree to respect the terms of the stay and the undertaking granted and confirmed by Isaac C.J. on October 7, 1996, there is no further order required.

Application for judicial review was dismissed.