[OFFICIAL ENGLISH TRANSLATION]
Date: 20020117
Docket: 1999-2995(EI)
BETWEEN:
CAMIL FLAMAND,
Applicant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR ORDER
Tardif, J.T.C.C.
[1] This is a motion for revocation of
judgment.
[2] The motion was made and filed by
letter dated April 26, 2001. The content of the letter
is cited below:
[TRANSLATION]
...
We have received a mandate from our client,
Camil Flamand, to represent him in this case.
Mr. Flamand was represented by counsel who also represented
all the employees of Coopérative forestière
Girardville.
Those counsel appealed from the decision of the Human
Resources Development Canada officer. A decision dated
March 23, 1999, was rendered by Laval Mailloux, Chief
of Appeals. As a result of that decision, an appeal was
instituted in the Tax Court of Canada.
On December 19, 2000, our client received a letter from
counsel for the employees of Coopérative
forestière Girardville informing him that they had
proceeded with a discontinuance of the appeal. In fact, our
client never instructed his counsel to discontinue the
appeal.
Since our client has never been able to meet his counsel
directly, he has received no explanation regarding the
discontinuance. Our client thus believed that his case was
still following its course.
Last April 23, our client spoke with an officer of Human
Resources Development Canada, Sylvie Mérette, in
response to a letter she had sent them. At that time, the
officer explained to our client that there had been a
discontinuance in the notice of appeal, as a result of which the
case was closed and the claim was still valid. Our client
never instructed his solicitors to discontinue the case and would
have continued the proceedings alone if his solicitors had not
wanted to do so.
Consequently, our client asks that the case concerning his
application to appeal before the Tax Court of Canada be reopened
in view of the fact that he has reasons justifying that
request.
Please do not hesitate to contact us for any further
information you may require.
...
Annie Desrosiers, lawyer
[3] In response to the motion, the
respondent stated his arguments in a letter dated May 31,
2001, which reads as follows:
[TRANSLATION]
SUBJECT: Camil Flamand v.
Minister of National Revenue
T.C.C. No.: 1999-2995(EI)
Our File: 3-164919
...
This is further to the motion for revocation of judgment filed
by Annie Desrosiers, counsel for Camil Flamand in the above
case.
The respondent objects to this motion.
Summary of the Facts
The point at issue in this case was whether Camil Flamand
held insurable employment within the meaning of the
Unemployment Insurance Act during the week from
June 14 to June 20, 1992.
Mr. Flamand filed an application for unemployment insurance
benefits supported by a record of employment from
Coopérative forestière de Girardville dated
November 24, 1992.
Upon investigation, the Minister of National Revenue concluded
that he had not worked 11 weeks, but rather 12: the week of
June 14 to June 20, 1992, also had to be considered
insurable.
As stated by Guylaine Boivin in a letter dated
May 10, 2001 (a copy of which was sent to the Court),
Mr. Flamand appealed from the minister's decision and gave
the solicitors at CAIN LAMARRE CASGRAIN WELLS a mandate to
represent him in his case.
Mr. Flamand's case was similar to that of 49 other
workers of the Coopérative forestière de
Girardville. All the appeals were to proceed together at
Dolbeau. Two consecutive weeks of hearings were scheduled
for that purpose.
The documentary evidence and Mr. Flamand's statutory
declaration made it possible to conclude that he had actually
worked during the week from June 14 to June 20, 1992.
As previously stated in Guylaine Boivin's letter,
Mr. Flamand had admitted working during that week and not
reporting it in order to bank it and increase the number of weeks
of "stamps". The documentary evidence also showed that he
had paid board that week to stay at the logging camp.
Following numerous discussions and two meetings between
counsel for Mr. Flamand and counsel for the respondent,
Mr. Flamand filed a discontinuance of the appeal with the
Court on December 7, 2000.
As stated in Mr. Flamand's motion, on December 19,
2000, he received copies of the discontinuance and the letter
from the Court addressed to his counsel. In that letter,
the Court stated that, since the notice of discontinuance had
been filed, "this case is now closed."
It was not until April 23, 2001, upon receiving a letter
from Human Resources Development Canada (possibly to collect
unemployment insurance benefit overpayments) that
Mr. Flamand gave Ms. Desrosiers the mandate to file
this application.
Reasons for Objection to Motion
The respondent objects to this motion mainly for the following
reasons.
First, Mr. Flamand has not demonstrated that he was
diligent in handling his appeal. On the contrary, his
failure to act upon receipt of the letter from his counsel and
letter from the Court stating that, as a result of the
discontinuance, his file was considered closed, instead
demonstrates negligence on his part. It was not until four
months later that he decided to take steps to act on the
correspondence from his counsel.
Second, Mr. Flamand must bring prima facie
evidence that, if the Court set aside its decision and a hearing
were held, the result might be different, which he did not
do. He did not show that there was a chance he might
succeed.
Conclusion
In conclusion, the respondent requests that this Court dismiss
Mr. Flamand's motion for revocation of judgment.
In the alternative, should the Court not wish to dismiss the
motion on the basis of the written comments of the parties, the
respondent requests that a hearing of the motion be held so that
helpful witnesses may be heard, more particularly, the counsel
representing Mr. Flamand.
...
[4] In the proceedings, the applicant
was represented by a lawyer who was also acting for several tens
of other workers employed by the same employer,
Coopérative forestière de Girardville.
[5] In light of the administrative
complexity of managing such a large number of cases for the
lawyers acting as counsel, the employer that had given the
mandate to the counsel in question had also set up a genuine
communication structure.
[6] The person responsible for
communications testified and explained that she had acted as an
intermediary and interpretive officer for each of the
cases. In that capacity, she met with the applicant to
explain the status of his case, the chances of settlement and,
lastly, counsel's intention to file a discontinuance in the case
involving him. The discontinuance was in fact filed on
December 7, 2000.
[7] As a result of the meeting, the
file went forward as the applicant had been told and a
discontinuance was filed. The discontinuance, of which the
applicant received a copy on December 19, 2000, resulted in
a claim with which he completely disagreed. It was not
until April 23, 2001, that he decided to institute
proceedings for leave to be heard by the court. In support
of his claims, he filed an affidavit stating inter
alia:
[TRANSLATION]
...
I, the undersigned, CAMIL FLAMAND, domiciled and residing at
4006 du Héron Bleu in St-Félicien, district of
Roberval, solemnly declare the following:
1. I am the
applicant in this case;
2. In this
case, I was represented by counsel who at the same time were
representing all the employees of Coopérative
forestière Girardville;
3. Those
counsel were appealing from the decision by the Human Resources
Development Canada officer;
4. On
March 23, 1999, a decision was then rendered by Laval
Mailloux, Chief of Appeals;
5. As a result
of that decision, an appeal was instituted in the Tax Court of
Canada;
6. On
December 19, 2000, I received a letter from counsel for the
employees of Coopérative forestière
Girardville informing me that they had proceeded with a
discontinuance of the appeal;
7. I never
gave those counsel a mandate to discontinue the appeal;
8. I was never
able to meet my counsel directly;
9. Since I was
given no explanation with respect to the discontinuance, I
believed that my case was following its course;
10. Last April 23, I
spoke with a Human Resources Development Canada officer,
Sylvie Mérette, in response to a letter that she had
sent me. She explained to me that there had been a
discontinuance in the application for appeal, as a result of
which the case was closed and the claim was still valid;
11. I never gave my
counsel a mandate to discontinue the case, and I would have
continued the proceedings on my own if my counsel had not wanted
to pursue the case;
12. I ask that my case be
reopened with respect to my application to the Tax Court of
Canada in view of the fact that there are reasons justifying
this application;
13. All the facts alleged
in this affidavit are true to the best of my knowledge.
Roberval, May 17, 2001
CAMIL FLAMAND
Applicant
...
[8] The circumstances of the decision
to file a discontinuance are quite unclear. The applicant
alleges the following facts in paragraphs 7, 8 and 9 of his
affidavit:
7. I never
gave those counsel a mandate to discontinue the appeal;
8. I was never
able to meet my counsel directly;
9. Since I was
given no explanation with respect to the discontinuance, I
believed that my case was following its course;
[9] Furthermore, the evidence revealed
that in addition to a lawyer, the employer had mandated a person
to be responsible for following up on the cases but especially
for ensuring that the interested parties, including the
applicant, knew what was happening with their respective cases,
particularly during the period preceding the settlement.
[10] Mr. Flamand was not very clear on
this fundamental aspect; he was clearly more concerned about the
consequences of the judgment than about the facts and proceedings
that preceded it.
[11] Having regard to the evidence, I
believe that the applicant at least tacitly consented to the
filing of a discontinuance. The long delay between the
moment he received the copy of the discontinuance and the
decision to file a motion for revocation of judgment is quite
revealing. This ground alone is sufficient to dismiss the
motion.
[12] Even if he had acted diligently, in
order to succeed, he had to show that not only had his rights
been violated but also that he had been deprived of the right to
present arguments of fact and law that might call for a different
judgment.
[13] Not only did the applicant not bring
evidence to this effect, it appears, on the contrary that the
basis of the determination in appeal was as decisive as a written
admission in a statutory declaration.
[14] The basis of the motion for revocation
of judgment stems from the claim subsequent to the judgment.
[15] The applicant did not show that his
motion was valid by bringing evidence that he had acted
diligently and especially that he had at least a prima
facie case to make, and the motion must be dismissed.
Signed at Ottawa, Canada, this 17th day of January
2002.
J.T.C.C.
Translation certified true
on this 8th day of April 2003
Sophie Debbané, Revisor
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