Citation: 2012 TCC 144
Date: 20120502
Docket: 2008-2126(IT)G
BETWEEN:
IAN R. JAMIESON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Campbell J.
[1]
This matter originally
came before me as a status hearing in Calgary on November
30, 2011. The Appellant did not appear and advised the Court by way of an email
to the Respondent that he did not intend to be present. Respondent counsel
briefly reviewed the timeline of events that had occurred in this appeal since
the Appellant first filed his Notice of Appeal on June 25, 2008 and requested
that the appeals be dismissed for want of prosecution. It is important that I
outline the history of these appeals as it goes to the heart of my reasons for
granting the Respondent’s motion.
[2]
On November 20, 2008 an
Order was issued extending the time within which the Notice of Appeal could be
filed with this Court. The appeals relate to the Appellant’s 1995 to 2002 taxation
years. The issues are whether the Appellant was a resident in Canada during any of these years and the amount of his
taxable income.
[3]
The Respondent filed
a Reply to the Notice of Appeal on February 12, 2009. On April 9,
2009, the Appellant submitted his first request to have his appeal held in
abeyance for an indeterminate period of time due to health issues. This request
was accompanied by a medical certificate dated March 12, 2009 from
Dr. Sayeeda Ghani of Edmonton. According to this medical certificate,
the Appellant was suffering from stress related issues and should avoid
temporarily “any stressful situation, including any legal actions or
proceedings”. By letter dated June 15, 2009, this Court initially denied the
Appellant’s request and the parties were required to submit a timetable for
completion of steps within 30 days of the date of that letter.
[4]
On August 26, 2009, a
status hearing was held and by Order of Justice Campbell Miller, dated September 3, 2009, timelines were established for completion
of those steps. The Appellant requested and was granted an extension of time to
provide his list of documents by Order of Justice Campbell Miller dated December 16, 2009.
[5]
At a further case
management conference held on February 18, 2010, Justice Campbell Miller issued
a further Order providing amended dates for the completion of the remaining
litigation steps in this matter. The Appellant wrote to the Respondent on March
24, 2010 advising that he had fallen on ice and would not be attending the examination
for discovery scheduled for March 30 and 31, 2010. On May 5, 2010, the Order of
February 18, 2010 was amended again to advance the dates for the remaining
litigation steps. On June 15, 2010 the Appellant again wrote to the Respondent,
not the Court, requesting that the examination for discovery be rescheduled due
to health issues and side effects of medication. On June 24, 2010, Justice
Miller again issued an Order advancing the timelines for the parties and also
directing the Appellant to provide the Court with an updated medical report by
July 30, 2010.
[6]
On September 20, 2010,
the Appellant again wrote to the Respondent advising that he was too ill to
attend the examination for discovery and requesting that the Respondent notify
the Court. This request was accompanied by a medical certificate of Dr. Sayeeda
Ghani dated July 28, 2010. This certificate was almost identical in content to
the original certificate of March 12, 2009. Respondent counsel wrote to the
Court on September 20, 2010 enclosing the Appellant’s correspondence together
with Dr. Ghani’s certificate. In this correspondence, the Respondent
pointed out that efforts to contact the Appellant to arrange discoveries and to
serve on the Appellant a notice to attend had to date been unsuccessful. The
Respondent advised that the Appellant’s last known house address had been
boarded up and advertised for sale. Consequently, the Respondent had faxed and
posted to the Appellant’s post office box number a notice to attend discoveries
and also left a message to this effect on the Appellant’s voicemail. Shortly
after this, the Appellant forwarded the above‑noted correspondence of
September 20, 2010 to the Respondent with the enclosed medical certificate.
[7]
On September 26, 2010,
the Court again wrote to the Appellant asking for an updated medical
certificate by November 26, 2010, or alternatively, for the parties to provide
an updated timetable by that date.
[8]
On November 21, 2010, the
Respondent counsel provided the Court with the Appellant’s correspondence dated
November 20, 2010 enclosing Dr. Ghani’s certificate containing the same medical
information but now dated November 15, 2010.
[9]
On November 30, 2010,
the Court wrote to the parties requesting litigation dates by January 15, 2011.
On January 10, 2011, the Appellant wrote to the Respondent advising that he was
still on medication for stress and would be “declining to participate” in
setting down a timetable or any subsequent proceedings. On January 20, 2011,
the Court wrote to the Appellant advising that it would not set further dates in
this appeal until the spring and that a new medical certificate was required.
[10]
On July 21, 2011, Dr.
Ghani wrote to the Court and advised that he had lost contact with the
Appellant and that the last time he saw him was on November 18, 2010.
[11]
On September 6, 2011,
the Court ordered a status hearing to be held in court on November 30, 2011.
The Court Order to the Appellant was returned by Canada Post marked “moved” and
the telephone numbers on file were no longer in service. However, the
Respondent forwarded an email to the Appellant on November 23, 2011
advising of the court date together with contact information for the Court and
the Respondent. The Appellant did not contact the Court and, as he has done
throughout these proceedings, he instead emailed the Respondent on November 29, 2011
advising that he was ill and would not be attending. This was the status
hearing that took place before me where I dismissed the Appellant’s appeal.
[12]
On December 26, 2011,
the Appellant wrote to the Court asking that my Order dismissing his appeal be
set aside and that his appeal be reinstated. He advised in that letter to the
Court that he had received notification from the Respondent of the status
hearing scheduled for November 30, 2011 on the 29th day of November, 2011. He
further stated that he had advised the Respondent by return email on November
29, 2011 that he was too sick to attend and to make his apologies to the Court,
which the Respondent did. That email was before me at the hearing. The
Appellant also advised in this email that the Edmonton property had been foreclosed and, consequently, he had no fax or land
phone line, no regular computer access and no addresses where mail could be
sent and received in a timely manner. In the December 26, 2011 correspondence,
the Appellant provided the Court with an Edmonton address where he could be
notified of future proceedings but advised that mail to this address would be
re-routed to him in the Caribbean and that it would take anywhere from 4 to 6
weeks for such mail to reach him.
[13]
I received the
Respondent’s written response to the Appellant’s request on March 29, 2012. The
Respondent opposed the Appellant’s request and the submissions were supported
by an affidavit of Camille Ewanchyshyn. The Respondent pointed out that the
Appellant has both children and grandchildren living in Edmonton, although the
Edmonton address provided in his December 26, 2011 letter, where the
Court could correspond with him, did not appear to be a residential address or
the address of an accountant or solicitor. Instead, this address appeared to be
for an end-of-line retail store called “The Bargain Shop” located in a strip
mall that did not have a postal box or mail forwarding service.
[14]
The Respondent also pointed
out that, although the Appellant’s December 26, 2011 correspondence
contains letterhead referencing the Turks and Caicos Islands,
the Appellant provided no address, telephone number or any other type of
contact information if he is in fact residing there. The Respondent also
pointed out that the fax stamp on the copy of the letter to the Court and received
at the Respondent’s office shows that the letter was faxed to the Respondent
from a UPS store located in Edmonton.
[15]
In addition, the
affidavit accompanying the Respondent’s submissions points to a number of
factors which would lead to the conclusion that, although the Appellant has
represented to the Court and to the Respondent that he has been too ill to
attend to any of the deadlines imposed upon him, he has been actively producing
music videos and maintaining a website for that purpose. The Respondent
submitted a copy of the homepage of this site together with a copy of the
Alberta Trade Name/Partnership Search linking the Appellant to that site.
Further exhibits were produced indicating that nine music videos had been
released in 2011. There have also been news releases on the internet during
this period by the Appellant. I note that these miscellaneous facts were not
before me at the time of my decision to dismiss the appeals on November 30,
2011.
[16]
Rule 140(2) states:
140. (2) The Court may set aside or vary, on such
terms as are just, a judgment or order obtained against a party who failed to
attend a hearing, a status hearing or a pre-hearing conference on the
application of the party if the application is made within thirty days after
the pronouncement of the judgment or order.
[17]
As Respondent counsel
pointed out, the leading case Hamel v Chelle (1964), 48 W.W.R. 115, sets
out the principles followed by this Court in determining whether to set aside
an order dismissing an appeal. The decision in Hamel quotes Lamont, J.A.
in Klein v Schile, [1921] 2 W.W.R. 78, 14 Sask.
L.R. 220, at p. 79 as follows:
The circumstances under which a Court
will exercise its discretion to set aside a judgment regularly signed are
pretty well settled. The application should be made as soon as possible after
the judgment comes to the knowledge of the defendant, but mere delay will not
bar the application, unless an irreparable injury will be done to the plaintiff
or the delay has been wilful. Tomlinson v. Kiddo (1914) 7 WWR 93, 29 WLR 325, 7 Sask LR 132; Mills v.
Harris & Craske (1915) 8 WWR 428, 8 Sask LR 114. The application should
be supported by an affidavit setting out the circumstances under which the
default arose and disclosing a defence on the merits. Chitty's Forms, 13th ed.,
p. 83.
It is not sufficient to merely state
that the defendant has a good defence upon the merits. The affidavits must show
the nature of the defence and set forth facts which will enable the Court or
Judge to decide whether or not there was matter which would afford a defence to
the action. Stewart v. McMahon (1908) 7 WLR 643, 1 Sask LR 209.
[18]
The Appellant’s request
was not supported by an affidavit “setting out the circumstances under which
the default arose and disclosing a defence on the merits.” The Appellant
represented that he is out of the country and living in the Turks and Caicos
Islands and that he continues to be seriously ill. However, he provided no
evidence in his request, by way of affidavit or otherwise, to support either of
his representations. There is sufficient evidence, however, placed before me by
the Respondent that would lead me to question whether in fact the Appellant has
been in the past or is currently out of the country on any type of temporary or
permanent basis. In addition, I have no current medical certificate to support
that he is as ill as he states. Dr. Ghani has advised the Court that he no longer
has any contact with the Appellant. The miscellaneous facts submitted by the
Respondent concerning the Appellant’s work activities support my conclusion
that, although he is actively involved in producing music videos and other
related internet activities, he refuses to attend to deadlines imposed by this
Court.
[19]
The Appellant’s request
provides no new evidence that would allow me to alter my decision of November
30, 2011 and set aside my Order. He has continued to keep secretive his contact
information both from the Respondent and this Court. He failed in his request
to explain his failure to attend the November 30, 2011 hearing or to have an
agent or solicitor attend on his behalf.
[20]
These appeals commenced
in November 2008. After a number of delays, lists of documents were exchanged
but after this step nothing further has occurred. The appeals have been case
managed and numerous orders and amending orders have been issued, all of which
were to accommodate the Appellant.
[21]
The Appellant has
failed to proceed diligently and reasonably in moving his appeals through the
system. These are his appeals and, after three and one-half years, he must
assume responsibility for complying with the numerous orders which have been issued
to accommodate him. If he refuses to do so, as he has done here, then he faces
the possibility of having his appeals dismissed.
[22]
The fact that this
Appellant intends to “stay the course” with his appeals is evidenced by the
fact that, in this age of instant communication, he now states that any
communication on his appeals could take 4 to 6 weeks to reach him. This is an
incredulous statement given that he has children and grandchildren living in Edmonton with whom, I suspect, he enjoys more regular contact
than the weeks proposed for transmitting information on his appeals. The Court
and the Respondent have dealt reasonably with the Appellant, but there comes a
time when common sense must prevail and room made in the court docket for
taxpayers who are earnestly attempting to comply with court orders and have
their appeals heard. The Appellant’s approach to his appeals prejudices those
taxpayers. I must infer from the Appellant’s inaction in these appeals and his
approach of delaying the matter to infinity, that he has no desire ultimately to
have his appeals adjudicated upon by this Court.
[23]
The request is denied
and I award costs of $500 to the Respondent payable forthwith.
Signed at Vancouver, British
Columbia, this 2nd day of May
2012.
“Diane Campbell”
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