Beaubier T.C.J.:
1 These appeals for a series of tax years from 1983 to 1989 were filed in the Tax Court of Canada on November 20 and November 22, 1995 respectively. Pursuant to Rule 125 of the Rules of General Procedure, after a lapse of six months after the Replies were filed they were set down for a status hearing by the Court. Thereupon peremptory dates for hearing were fixed, with the consent of counsel for all parties, to occur en January 19, 1998 in Toronto. At the opening of the hearing for these appeals at 9:30 a.m. on January 19, 1998 in Toronto, Ontario, the Appellants and their counsel did not appear. Counsel for the Appellants was represented by a solicitor appointed as agent for counsel.
2 Agent for Appellants' counsel applied for an adjournment of these appeals on the basis of a medical certificate dated January 15, 1998 from Dr. Kilmartin. In response, Respondent's counsel argued against the motion to adjourn and moved that the appeals be dismissed for want of prosecution.
3 The chronological order of the record is:1. April 1, 1997- Justice writes Mr. Pyne, appellants' counsel, describing the Status Hearing called for these appeals on May 26th, 1997 stating an intention to move to join these with Tax Court of Canada files 96-3797 and 96-3805(IT)G. Consent is requested. There is no record of a response.
2. May 26th, 1997- The Status Hearing occurs before Judge Margeson. The transcript shows that both counsel appear. No reference is made to files 96-3797 and 96-3805(IT)G. Mr. Pyne refers to the weight of the cases in the Status Hearing at pages 2 and 3 of the transcript. He states:
Well, there are a number of issues. There is about every conceivable issue that one could contemplate constituting a tax case. They are all there, Your Honour.
This Court has reviewed the files thoroughly, Mr. Pyne is correct. Moreover they occur in different forms over the years 1983 to 1989; that is beginning 15 years ago. Time for trial is estimated by Mr. Pyne at 6 days. It is set for 5 days, to occur on January 19, 1998. Dates were fixed on counsels' agreement. The body of Judge Margeson's Status Hearing orders for each file before this Court are similar. The order for file number 96-3808(IT)G reads:Status Hearing held on Monday, May 26, 1997 at Toronto, Ontario
The examinations for discovery shall be completed not later than October 30, 1997.
Undertakings given at discovery shall be completed not later than December 15, 1997.
The present appeals will be heard on common evidence with the appeals of United Color & Chemicals Limited (95-3806(IT)G).
These appeals are set down on peremptory basis for hearing commencing on Monday, at 9:30 a.m., January 19, 1998, for a duration of five (5) days, at the Tax Court of Canada, Suite 902, Merrill Lynch Canada Tower, 100 King Street West, Toronto, Ontario.
Signed at Ottawa, Canada, this 18th day of June 1997.
- 3. January 13, 1998- Mr. Pyne requests an adjournment of these trials for the following reasons:
(1) Consolidation of files 96-3797 and 96-3805(IT)G. These files are said by him to deal with the same parties for the years 1990 to 1992. Mr. Pyne states that he thought that they had been consolidated.
(2) Mr. Vass is awaiting word on whether he should possibly undergo surgery. The body of Mr. Vass' doctor's letter from Dr. Suranyi of Cornwall, Ontario, dated December 29, 1997, states:
Dear Sir,
Please be advised that Mr. Otto J. Vass has been my patient for about 12 years. During the last several months he has been ailing and has not been able to attend to his business duties.
Currently, he is undergoing diagnostic testing with the possibility of surgery, depending on the outcome. Mr. Vass should only resume his business duties in about the period of April May, 1998.
4. January 13th, 1998- Counsel for the Respondent advises the Court that it takes no position respecting the request for adjournment.
- 5. January 14, 1998, 2:57 p.m.- Fax from Mr. Pyne to the Court.
(1) Mr. Pyne advises of telephone call from the Tax Court in Ottawa on January 13th, 1998.
(2) He again requests an adjournment for the additional reason that he “has been called to trial in Ottawa ... before Mr. Justice Cunningham on January 19”. The body of this letter reads:
Further to my letter on this matter of January 13, 1998, and Mr. Wheeler's letter to you, also of yesterday's date, I advise that I received a telephone call yesterday from Arlene Cook at the trial co-ordinator's office in Ottawa. I have been called to trial in Ottawa in respect of Court File Nos. 88239/95A and 88239/95B, before Mr. Justice Cunningham on January 19. This trial will last at lease one week and extend most probably into a second week. The case involves a third and fourth party action all of whom are represented by counsel.
For this reason in addition to those recited in my letter of January 13, I would request that the adjournment be granted.
6. January 14, 1998, 3:19 p.m.- Court fax to Mr. Pyne refusing adjournment request of January 13, 1998.
7. January 15, 1998 10:54 a.m.- Mr. Pyne faxes a further request for adjournment by letter dated January 14, 1998. The body of this letter reads:
I acknowledge receipt of your letter of January 14, 1998, which I received after forwarding to Ms. Lamoureux my letter to the Court of the same date. I infer that the Court did not have that letter in its possession at the time the decision to deny the adjournment was made.
I have of course, also received Mr. Wheeler's letter of January 13, 1998, and communicated with my client.
I therefore, set out all considerations in this matter as succinctly as possible:1. All four appeals have common issues and, counsel agree, should be heard together on a consolidated basis;
2. Mr. Vass has been without electricity for six days in Montreal and has now contracted pneumonia. He is under the care of one Dr. Patrick Kilmartin, telephone (514) 694-0886. Mr. Vass is not able to attend in Toronto on January 19, 1998;
3. Irrelevant to the issue, but reflective of Mr. Vass' circumstance, Mr. Vass, who is in Montreal, tells me his car is encased in six inches of ice. Two birch trees are bowed over and have bonded with the vehicle. His vehicle is as he puts it “entombed”;
4. I have been called to trial Monday, January 19, 1998, in Ottawa at 10:00 a.m. before Mr. Justice Cunningham, The action is Four Courts et al v. West Ottawa Tennis Club; Yeadon Fabric Structures Ltd., third party; Ralph Ashton Farley, fourth party. The trial co-ordinator is Arlene Cook (613) 239-1016. All parties are healthy and intend to proceed;
5. Mr. Wheeler, counsel for the Minister, graciously, takes no position with respect to the Appellant's request for an adjournment and therefore I infer, does not oppose it;
6. An issue common to the four appeals involves the same issue as was successfully litigated by the Appellants in respect of prior taxation years; cf. UNITED COLOR AND CHEMICALS LIMITED v. Minister of National Revenue, 1992 C.T.C. 2321.
I respectfully request that the court reconsider this matter. In these circumstances it would be a harsh consequence for the taxpayers to have these appeals summarily dismissed, particularly when the Court adjudged them successful on a substantial issue common to these appeals for years immediately prior to those now at issue.
8. January 16, 1998. 8:40 a.m.- Justice faxes a letter to Tax Court. Justice takes no position respecting the adjournment request.
9. January 16, 1998, between 10:00 and 10:10 a.m.- The Tax Court's acting trial co-ordinator in this matter phones Mr. Pyne's office. Mr. Pyne is not in yet. She tells Mr. Pyne's secretary all the contents of the Court's letter which is faxed to Mr. Pyne at 10:52 a.m..
10. January 16, 1998, 10:42 a.m.- Mr. Pyne faxes a letter to the Court, the body of which states.
Having not heard from the Court following my second letter of January 14, 1998, and my letter of yesterday January 15, 1998, I must assume that the Court declines to offer its position that no adjournment will be granted.
Mr. Vass is not able to travel to Toronto and will not be attending. As I stated in my letter of yesterday's date I am constrained in the circumstance to appear before the Ontario Court (General Division) in Ottawa. I will be retaining counsel to appear before the presiding Judge in Toronto to explain circumstances in this case but I assume the Court has endeavoured to fill up the available Court time.
11. January 16, 1998, 10:52 a.m.- The Court faxes a letter to Mr. Pyne, the body of which reads:
Further to your letter faxed to the Court on January 15, 1998 requesting an adjournment of the above-noted appeals. This is to advise you that your request has been denied by the Court, however the Court is willing to consider sitting in Montreal if this will be more convenient to all concerned. Otherwise parties should be prepared to proceed as scheduled on January 19, 1998 in Toronto.
12. January 16, 1998: - Justice writes the Tax Court and agrees to a trial in Montreal on January 19, 1998 if the Appellants wish that.
13. January 19, 1998- Respondent's counsel advises the Court that the Appellant and their representatives have failed to accept offers of various dates to attend at examinations for discovery pursuant to Judge Margeson's Status Hearing orders.
14. January 19, 1998- at the opening of trial, counsel appeared solely as agent for Mr. Pyne to ask for an adjournment. Doctor Patrick Kilmartin's (of Kirkland, Quebec, a suburb of Montreal) certificate of January 15, 1998 was introduced for the first time. It reads:
This is to certify that Otto Vass is under my care for the following: Mr. Vass is suffering from pneumonia, he is presently on medication and he is unable to attend court case scheduled for January 19th, 1998. Mr. Vass is to follow up at the office in 10 to 15 days.
The Court stated that the certificate by itself was not acceptable.
It is deficient, Inter alia, it does not say that Dr. Kilmartin examined Mr. Vass and it does not say that Dr. Kilmartin prescribed medication for Mr. Vass. It does not say when any such examination or prescription occurred. The onus is upon each Appellant to satisfy the Court respecting the request for an adjournment. Given the record of the Appellants in this file, the Court notes that no affidavit on the part of either Appellant requesting an adjournment has ever been filed with this Court.
4 The Appellants have a record of delay. The delay in introducing Dr. Kilmartin's certificate, which has deficiencies, raises the question of credibility. The Court stated that it would have to examine Dr. Kilmartin and/or Mr. Vass under oath before an adjournment would be granted. To do so the Court offered to go to the Tax Court's premises in Montreal for such an examination to occur within 36 hours. The Court was adjourned from approximately 10:40 a.m. until 1:00 p.m. so that counsel's agent could make such arrangements.
5 At 1:00 p.m. Court was advised by counsel's agent that Dr. Kilmartin would not attend Court. The Court suggested a subpoena upon the doctor. That suggestion was not undertaken on behalf of the appellants. Counsel's agent did not advise the Court as to whether he had contacted Mr. Vass. In these circumstances the Court finds that Dr. Kilmartin's certificate is not satisfactory for the purpose of the granting of an adjournment to either Appellant. The agent for the Appellants' counsel advised the Court that the Appellants and their counsel are not in Court and ready to proceed to trial.
6 In summary,1. Mr. Vass, who is apparently in Montreal, and the other Appellant have not supplied sufficient medical letters or certificates from Mr. Vass' doctor. No affidavit has been filed.
2. The Appellants and the Respondent have had the Status Hearing and almost 8 months in which to consolidate the files for trial on January 19th, 1998, pursuant to their agreed dates.
3. The delay by Mr. Pyne until January 13, 1998, to request an adjournment is unconscionable given the period that these matters have been before the Court and the period of ailments alleged in Dr. Suranyi's letter.
4. The issues in the two cases before the Court are sufficiently complicated to warrant a 5 day trial. In this Court's view, a consolidation of additional years and possible additional issues is not warranted or advisable. There is no evidence that consolidation will assist, save or economize anything.
5. Mr. Pyne's “call to trial, Monday January 19, 1998, in Ottawa” is not an excuse for failure to be in this court on January 19, 1998, for trials on dates that he agreed to on May 26th, 1997.
6. Mr. Pyne's alleged failure to know of a lack of consolidation, he and his clients' failures respecting examinations for discovery, his delay and progressive and varying excuses for requesting an adjournment, the failure to supply any affidavits and the failure to accept this Court's offer to hear the appeals in Montreal and on January 19 to go to Montreal to hear Dr. Kilmartin and or Mr. Vass testify under oath cumulatively create doubts in the Court's mind as to the truth of Mr. Vass' alleged illness which can only be dispelled by evidence under oath. The Appellants are not prepared to provide evidence under oath in Court.
7 Mr. Pyne's own words in the Status Hearing respecting the complicated issues in the two appeals before the Court today embody the reason why consolidation should not occur.
8 To paraphrase a now famous Canadian quote, the record of the Appellants is of “delay, delay, delay”. It is one which the Appellants' counsel has aided and abetted.
9 There is no acceptable valid reason or excuse for an adjournment of these appeals. The request for an adjournment is dismissed in respect of both appeals.
10 For the foregoing reasons, and on the basis of the failure by both Appellants to prosecute their appeals on January 19, 1998, the appeals are dismissed. The Respondent is awarded a full set of party and party costs against each Appellant.
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