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Citation 2004TCC811
Date: 20050112
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Dockets: 2000-3255(IT)G
2000-3601(IT)I
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BETWEEN:
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DAVID A. DAWSON,
JOHN D. DAWSON,
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Appellants,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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_______________________________________________________________
(Edited from the transcript of
Reasons for Judgment delivered orally from the Bench on November 19, 2004 at
Winnipeg, Manitoba)
REASONS FOR JUDGMENT
Campbell J.
[1] This is an
application by the Appellants, David and John Dawson, to set aside the judgment
of Justice Bowie dated August 27, 2004. Justice Bowie's judgment dismissed both
appeals for failure to appear.
[2] David Dawson
appeared on his own behalf this morning and as agent for his son, John Dawson.
This application of David Dawson is pursuant to Rule 140(2) of the General
Procedure Rules, which specifies in very direct and clear language that the
application to set aside or vary such an order must be made "...within 30
days after the pronouncement of the judgment or order". David Dawson is
beyond that time limitation in bringing his application. In this respect alone
by operation of the Rules, I am unable to set aside the judgment issued by
Justice Bowie, but beyond the limitation there are other aspects of the
Appellant's' argument which need to be addressed, simply because he has
canvassed that issue in terms of the medical certificates and his own condition
in bringing this application.
[3] In reviewing the
various documents submitted in Exhibit A-1, as well as reviewing the transcript
of Justice Bowie's hearing in August of this year, I do not have anything
substantial beyond the evidence examined by Justice Bowie. He concluded that
there was no definitive detailed information, either as to a diagnosis or
prognosis, and that the medical certificate of Dr. Lam dated August 18,
2004 simply stated the Appellant was ill and unable to attend court.
[4] Prior to this
certificate, which was reviewed by Respondent counsel, there was a referral for
a CAT scan in April 2004, and a further certificate of Dr. Young on June
15, 2004, confirming the examination was normal.
[5] On September 24,
2004 a report from the Department of Radiology indicates that the post CAT scan
is unremarkable. In a letter of Dr. Young to Dr. Lam dated October 8, 2004
it states, and I quote:
He has certainly had no
further episodes of disturbed consciousness or awareness.
The certificate goes on to refer to
the episodes the Appellant was having as:
...probably
cardiovascular and perhaps hypotensive in origin.
[6] There is nothing remarkable
in any of this documentation since the date of Justice Bowie's detailed
reasons. Justice Bowie found that the certificate was deficient, and did not
address why the Appellant could not be in court.
[7] Medical
certificates, when offered for the purposes of obtaining an adjournment, such
as this, should, at the very least, state in clear language what medical
condition prevents that individual from attending court on that particular day
at that particular time. Otherwise, they are meaningless.
[8] Even if I could
find a way to get around the 30-day rule I am left with the problem that David
Dawson simply has not provided additional information which might warrant
revisiting Justice Bowie's decision. I am left with simply no reasonable
explanation as to why David Dawson has been unable to proceed with his appeal
on one of the many previously assigned dates. I believe there have been four
adjournments prior to the matter coming before me this morning.
[9] It is also
important to note that Justice Bowie had given the Appellant's lawyer time on
the first day of the hearing in August to get the proper medical information
before the court, but the certificate that was offered was viewed by Justice
Bowie as simply insufficient. I, too, share that view.
[10] Because I have
nothing before me that convinces me that I should reopen the matter, I must
dismiss the application of David Dawson.
[11] I turn now to the
application of John Dawson, who is absent this morning. He was not present at
the hearing in August 2004 held before Justice Bowie. That was the fifth time
the matter had been before this court.
[12] Mr. Derwin, who was
representing David Dawson in August, advised Justice Bowie that he had no
authority to represent John Dawson. An affidavit of John Dawson was filed
stating that he was out of town due to work commitments. Justice Bowie had that
affidavit before him when he made his finding. I have nothing further in
respect to his application, other than the submissions of his father, David
Dawson.
[13] He did not appear
before me, and when I asked Mr. David Dawson why he was not in attendance, I
was advised only that his work takes him out of the city on regular intervals.
[14] Despite the
affidavit and submissions of his father (his Agent) the history of the appeal
clearly indicates no genuine interest and desire on John Dawson's part to move
his appeal along in a timely manner and have it adjudicated. Taxpayers must
bear some responsibility when they choose to represent themselves, to pay
attention to court dates and times, and to exhibit an interest in having their
appeal dealt with in a timely fashion. The history in these appeals is quite
the opposite.
[15] I must therefore
also dismiss the application of John Dawson.
[16] I make no order as
to costs.
Signed at Ottawa, Canada, this 12th day of
January 2005.
Campbell
J
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