Dubé,
J.:—The
plaintiff's
motion
is
for
default
judgment
in
an
income
tax
matter.
His
statement
of
claim
was
filed
on
December
22,
1986.
A
copy
of
it
was
served
on
the
Attorney
General
of
Canada
in
Ottawa,
Ontario
on
December
31,
1986.
The
instant
application
for
judgment
by
default
was
served
on
the
defendant
on
February
11,
1987
and
the
motion
was
heard
today,
February
16,
1987.
Under
Rule
433
of
the
Federal
Court,
where
the
plaintiffs
claim
against
a
defendant
is
for
unliquidated
damages
only
and
if
the
defendant
has
not
filed
a
defence,
the
plaintiff
may,
after
the
expiration
of
30
days,
apply
for
judgment.
Even
taking
into
account
the
Christmas
Vacation
under
Rule
4
which
comprises
the
period
commencing
on
December
21,
1986
and
ending
January
7,
1987
the
defendant
has
not
filed
a
defence
within
30
days
from
January
8,
1987.
The
defendant's
counsel
filed
an
affidavit
in
support
for
her
own
motion
pursuant
to
Rule
402(2)(c)
for
leave
to
file
a
defence
outside
the
30-day
limit.
In
her
affidavit
in
support
of
that
motion
the
affiant
explains
that
the
delay
was
due
to
the
late
transmittal
of
the
statement
of
claim
from
Ottawa
to
Vancouver
and
the
necessity
to
consult
the
Charter
Litigation
Coordinator
for
the
Department
of
Justice
in
Ottawa
as
Charter
issues
are
raised
in
the
action.
The
prepared
final
draft
for
the
defence
had
not
yet
been
approved
for
filing
by
the
Department
of
National
Revenue
within
the
30-day
limit.
The
plaintiff,
an
unemployed
and
disabled
aircraft
mechanic,
acting
on
his
own
behalf,
rejected
forcefully
and
eloquently
the
explanations
of
the
defendant.
His
voice
raised
in
emotional
desperation,
he
railed
against
the
deliberate
dilatoriness
of
the
bureaucratic
juggernaut.
In
short,
he
had
his
day
in
court
and
a
good
one.
The
grant
of
judgment
in
default
of
defence
is
discretionary
(see
The
Queen
v.
Rhine,
[1979]
2
F.C.
308
T.D.).
In
Smith
v.
The
Queen,
et
al.,
[1977]
2
F.C.
481
T.D.
a
motion
for
default
judgment
for
failure
to
file
a
defence
was
stayed
where
a
defence
was
tendered
in
the
meantime
and
the
action
was
one
where
the
Court
entertained
serious
doubts
as
to
its
probability
of
success.
In
the
instant
case,
the
plaintiff
alleges
that
the
assessment
of
tax
with
regard
to
the
wage
loss
benefits
received
by
him
be
vacated
solely
on
the
basis
that
the
relevant
provision
of
the
Income
Tax
Act
violates
certain
sections
of
the
Canadian
Charter
of
Rights
and
Freedoms
and
the
Canadian
Bill
of
Rights.
This
is
clearly
not
the
type
of
issue
that
can
be
properly
resolved
by
way
of
judgment
by
default.
Under
the
circumstances,
although
my
first
sympathetic
reaction
to
the
plaintiffs
stimulating
plea
would
lead
me
to
grant
him
his
motion,
I
feel
that
it
would
not
be
in
the
interests
of
justice
to
do
so.
In
any
event,
the
plaintiff’s
victory
would
undoubtedly
be
of
a
short
duration.
This
application
for
judgment
by
default
is,
therefore,
denied
but
the
plaintiff
will
have
his
costs,
if
any,
whatever
the
outcome
of
the
action.
Application
denied.
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