Whiteway v. The Queen, docket 91-158-IT-I (Informal Procedure)

Date: 19980130

Docket: 91-158-IT-I

BETWEEN:

DEAN W. WHITEWAY,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Judgment

Archambault, J.T.C.C.

[1] Mr. Whiteway is appealing assessments issued by the Minister of National Revenue (the “Minister”) for the 1987 and 1988 taxation years. The Minister disallowed the clergyman’s residence deduction claimed by Mr. Whiteway pursuant to paragraph 8(1)(c) of the Income Tax Act. Neither Mr. Whiteway nor his attorney were present when the case was called. On the one hand, I was not surprised not to see him there because the Federal Court of Appeal in McRae v. The Queen, 97 DTC 5124, had, on similar facts to those of Mr. Whiteway’s case, decided against the position of the taxpayer. On the other hand, I was surprised to realize that not only had his attorney, Mr. Peter Falk, not informed the Court that his client had decided not to pursue his appeals but that he was himself absent. Assuming that he had not been able to reach his client prior to the hearing, he could have come to the hearing to describe to the Court all the efforts that he had made to reach him.

[2] The hearing date for these appeals had been set down pursuant to an Order of the Chief Judge of this Court dated August 29, 1997. That particular Order was sent first to the attention of Mr. Philip P. Pauls of Pitblado & Hoskin. Apparently, Mr. Pauls had left that firm prior to receipt of the Order. The Court sent the Order to the attention of Mr. Peter Falk of the same firm on September 19, 1997. I should emphasize that when the appeals of Mr. Whiteway were filed on February 6, 1991, the address for service which appeared on the Notice of Appeal was shown as being “Pitblado & Hoskin to the attention of Mr. Falk or Mr. Pauls.” In the records of the Court, there are no indications that Mr. Whiteway had changed attorneys. Therefore, as far as this Court is concerned, Mr. Peter Falk was still the attorney of record in these appeals.

[3] When I realized that Mr. Falk was absent, I instructed the registrar to call Mr. Falk and find out what was going on. I was advised that Mr. Falk had not been able to contact his client. I then instructed the registrar to advise Mr. Falk that he had to appear in Court to explain the situation. His secretary advised the registrar that someone from the Department of Justice had informed Mr. Falk that it was not necessary to do so, and that no one would appear in Court.

[4] At the hearing, I asked counsel for the Minister whether it was the practice of lawyers at the Department of Justice to advise taxpayers’ lawyers not to appear when they are not able to contact their client prior to the hearing of an appeal. I was informed that this was not the Department’s policy. Quite the contrary, I was advised that lawyers from the Winnipeg office of the Department of Justice always insist on having lawyers for taxpayers appear.

[5] Counsel for the Minister also informed me that on December 15, 1997, he wrote to Mr. Peter Falk asking him whether he intended to continue with his client’s appeals in light of the existing case law, as indicated in a prior letter to his firm dated December 9, 1997. Counsel for the Minister informed the Court that Mr. Falk never replied to his letter. Furthermore, counsel for the Minister tried to reach Mr. Falk by telephone but Mr. Falk never returned his phone call.

[6] I find the conduct of Mr. Falk, in these circumstances, to be in breach of his duty to act as an officer of this Court and, as such, totally unacceptable. Pursuant to the Order issued by the Chief Judge, Mr. Falk had the duty to appear at the hearing of these appeals or at least to have someone from his firm do so. If he wished to withdraw from this case, he could have filed a motion to withdraw from these appeals. I also find that he was in breach of his duty to respond to the request of his colleague at the Department of Justice who wrote to him on December 15, 1997. I find Mr. Falk’s conduct all the more disturbing as he is a member of a well-known Winnipeg law firm.

[7] For these reasons, the appeals of the Appellant are dismissed and Mr. Falk is ordered to pay to the Respondent $300. He shall not be entitled to reimbursement of these costs by Mr. Whiteway.

Signed at Ottawa, Canada, this 30th day of January 1998.

"Pierre Archambault"

J.T.C.C.