Citation: 2011TCC277
Date: 20110715
Docket: 2009-301(IT)I
BETWEEN:
ADELEKE D. KESHINRO,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
ORDER AND REASONS FOR ORDER
[1] The Appellant
seeks to have an Order for dismissal set aside pursuant to subsections
18.21(1), (2) and (3) of the Tax Court of Canada Act. I had ordered that
his appeal be dismissed when he did not appear in Court at the scheduled
continuation of the trial of October 7, 2010. The Appellant has not provided me
with sufficient information to support setting aside the Order.
[2] On October 6,
2010, this matter proceeded to trial at 2:00 p.m. The Appellant had taken the
witness stand and presented evidence on his own behalf. The Appellant was
cross-examined for some time, and just when Respondent’s counsel only had about
five questions left in the cross-examination, at 4:53 p.m. the Appellant
announced to the Court that he had a problem; his problem was that his twelve
year old daughter had been out of school since 3:30 p.m. and he was supposed to
pick her up between 2:30 and 4:30 p.m. He said he needed to leave the Court in
order to pick her up, not having made any arrangements for her pick up even
though his trial was scheduled to commence at 2:00 p.m. on October 6, 2010.
[3] Prior to adjourning the matter to resume the following day, October 7, 2010 commencing at 8:30
a.m. The following exchange took place:
Justice
Rossiter: We will start here tomorrow morning at 8:30 a.m. You will
be here at 8:30 a.m. Do you understand?
Mr. Keshinro: Yes
sir.
Justice
Rossiter: That’s 8:30 a.m. here to start. Not 8:35 a.m. but 8:30
a.m. Are you going to be here tomorrow morning at 8:30 a.m.?
Mr. Keshinro: Yes
sir. I am a school teacher.
Justice
Rossiter: You can forget about school tomorrow. You’re going to be
here at 8:30 a.m. tomorrow morning, we are going to finish your case tomorrow
morning.
Mr. Keshinro: Yes
sir.
Justice
Rossiter: If we don’t finish it by 9:30 a.m., when this gentleman is
finished here at 9:30 a.m. we are going to jump over and come back and finish
it later on tomorrow. Do you understand?
Mr. Keshinro: Okay,
sir.
Justice
Rossiter: You can take the whole day off. You could be here the
whole day.
Mr. Keshinro: I
have to do that. Thank you very much.
Justice
Rossiter: Is that all right with you, sir?
Mr. Torchetti: Absolutely
Justice.
The Registrar: Order,
please. This court is adjourned until tomorrow morning at 8:30 sharp.
Whereupon
proceedings adjourned at 4:56 p.m. to be resumed on Thursday, October 7, 2010 at
8:30 a.m.
[4] On October 7,
2010 Court resumed at 8:33 a.m. The Court was advised, at the time, that the
Appellant was going to be late that morning and I stated to let the record show
that at 8:33 a.m. the Court was convened, the case was called and the Appellant
was not present and the Appellant had apparently left a message that he would
be there in about one hour. At that time, I adjourned the case to be called later
in the day.
[5] At 11:03 a.m.
Court was resumed, the Appellant’s case was called and again, the Appellant had
failed to appear. In the meantime, I caused a review of the premises to
determine whether or not the Appellant was present and, as far as could be
determined, the Appellant was nowhere on the premises. The Respondent made a
motion for dismissal of the Appellant’s appeal under section 18.21 of the Tax
Court of Canada Act. I heard and granted the motion dismissing the appeal
for failure of the Appellant to attend the hearing as scheduled.
[6] On October 15,
2010 the Tax Court of Canada received correspondence from the Appellant which
states as follows:
May I hereby
plead that my Appeal which was dismissed for reasons of my absence before the
Court on 7th October, 2010 be restored and listed for fresh hearing.
I called the court Clarke (sic) when I realized that this was happening and
came in to the court late.
Truly I was
scheduled to be in Court on that day but I had to take my young son, Master
Adekola Keshinro for Medical Treatment for a sudden ailment. I have attached a
copy of the Physician’s Note to prove this emergency.
I am desirous
of prosecuting this Appeal and I fervently pray for a second chance to be heard
in the ultimate interest of justice.
[7] Attached to that
letter was a note from the Appletree Medical Group Inc. dated October 13, 2010
from a Dr. Robert S. Laham which said:
Re: Adeleke
Dennis Keshinro
217
Stone Briar Drive
Maple,
ON L6A 4A3
He was late
for court last week October 07/10 due to child care responsibilities.
[8] This note does
not demonstrate that the Appellant visited the doctor with his son on October
7, 2010 and that this was what prevented him from appearing in Court. The
physician’s letter does not make mention of a visit by the Appellant to the
doctor on October 7, 2010, the date of the hearing. The Appellant asserts that he
had to take his son for medical treatment on October 7, 2010 but there is
nothing other than the correspondence of the Appellant to substantiate this
assertion. The Appellant faxed the physician’s note dated one week after the
hearing of the matter and the note only states that the Appellant “was late for
court last week Oct. 07/11 due to child care responsibilities”.
[9] I was not particularly impressed with the Appellant
and his evidence at the trial. Notwithstanding his level of education, the
presentation of his appeal and his own evidence was convoluted, mixed up,
lacked any organization, and it was almost impossible to follow and to get any
thread of consistency to his story. At the time of his failure to appear on
October 7, 2011 the Appellant had not discharged the burden upon him as an
Appellant – if anything, his evidence confirmed the assumptions of the
Respondent and his appeal ought to have been dismissed in any event.
[10] The Appellant has not satisfied me that it is
reasonable in all of the circumstances to have the Judgment set aside and for
these reasons, I dismiss the Appellant’s application to set aside the Judgment
of October 14, 2010.
Signed at Charlottetown, Prince Edward Island, this 15th
day of July,
2011.
“E.P. Rossiter”
CITATION: 2011TCC277
COURT FILE NO.: 2009-301(IT)I
STYLE OF CAUSE: ADELEKE D. KESHINRO v. HER MAJESTY THE QUEEN
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 6 and 7, 2010
REASONS FOR ORDER BY: The
Honourable Associate
Chief
Justice E.P. Rossiter
DATE OF ORDER: June 16, 2011
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the
Respondent: Myles J. Kirvan, Q.C.
Deputy
Attorney General of Canada
Ottawa,
Canada
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