[OFFICIAL ENGLISH TRANSLATION]
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Reference: 2004TCC160
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Date: 20040220
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Docket: 2002-3215(IT)I
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BETWEEN:
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FERNAND ST-PIERRE,
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Appellant,
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And
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
Alain Tardif J.
[1] This is a motion to dismiss an
appeal. The motion states the following:
1. The
respondent made a motion to dismiss the appeal in this file
because the appellant had never served on the Minister of
National Revenue a notice of objection under
subsection 165(1) of the Income Tax Act with respect
to the reassessment dated May 21, 2002, for the 1998
taxation year.
2. The
respondent maintained that, for that reason, the appellant's
appeal was not valid.
3. The hearing
of that motion took place in Quebec City before the Honourable
Judge Tardif on July 24, 2003.
4. Following
the hearing of that motion, the Tax Court of Canada made an order
on August 5, 2003, that granted the appellant a period of
time ending on August 29, 2003, to issue an amended notice of
appeal.
5. With that
same order, the Tax Court of Canada granted the appellant a
period of time ending on October 30, 2003, to issue a response to
the amended notice of appeal.
6. The
appellant has still not complied with the order dated
August 5, 2003, and has not filed an amended notice of
appeal.
[2] The motion was supported by an
affidavit setting out all of the facts on which the submission of
the motion was based.
[3] It involved the following
facts:
[TRANSLATION]
[...]
AFFIDAVIT
I, the undersigned, Annick Provencher, do solemnly affirm as
follows:
1. I am a
lawyer with the Department of Justice, Tax Litigation
Directorate, whose offices are located in the Guy-Favreau
Complex, 200 René-Lévesque Blvd W, East Tower, 9th
floor, in Montreal, H2Z 1X4.
2. I have
personal knowledge of this file.
3. The
respondent made a motion to dismiss the appeal in this file
because the appellant had never served on the Minister of
National Revenue a notice of objection under
subsection 165(1) of the Income Tax Act with respect
to the reassessment dated May 21, 2002, for the 1998
taxation year.
4. The
respondent maintained that, for that reason, the appellant's
appeal was not valid.
5. The hearing
of that motion took place in Quebec City before the Honourable
Judge Tardif on July 24, 2003.
6. Following
the hearing of that motion, the Tax Court of Canada made an order
on August 5, 2003, that granted the appellant a period of
time ending on August 29, 2003, to issue an amended notice of
appeal, as appears from the order attached as Exhibit R-1.
7. With that
same order, the Tax Court of Canada granted the appellant a
period of time ending on October 30, 2003, to issue a response to
the amended notice of appeal.
8. On November
7, 2003, I left a message on the voicemail box of Daniel Cantin,
counsel for the appellant, informing him that some of the
deadlines had not been met.
9. On November
17, 2003, as I had still not heard from counsel for the
appellant, I faxed him a letter, attached as Exhibit R-2 with a
transmission slip and a notice of confirmation, asking him to
take, within a reasonable period of time, the necessary measures
with the Tax Court of Canada to extend the timeframe for filing
his amended notice of appeal and thus rectify his failure to
comply with the order dated August 5, 2003.
10. On November 20, 2003,
as I had still not heard from counsel for the appellant, further
to my message of November 7, 2003, and my letter dated
November 17, 2003, I left him another message on his voicemail
box asking him to call me back.
11. That same day I
received a call from counsel for the appellant confirming that he
would ensure that the amended notice of appeal was filed no later
than November 28, 2003.
12. On or about November
28, 2003, an amended notice of appeal was faxed to me in this
file.
13. On December 9, 2003,
Denis Pépin of the Registry for the Tax Court of Canada
told me, in response to a call I had made, that the Tax Court of
Canada had not accepted the filing of that amended notice of
appeal because the deadline for filing it had already passed.
14. During that same
telephone conversation, Denis Pépin informed me that
a registry officer had contacted counsel for the appellant on
December 4, 2003, to notify him of the situation.
15. On December 9, 2003, I
left a message for counsel for the appellant asking him if he
intended to make a motion in this file in order to comply with
the order dated August 5, 2003.
16. That same day, counsel
for the appellant informed me that he had gone past the deadline
because the accountant in the file had not provided him with the
documents he had needed to prepare his amended notice of
appeal.
17. During that same
conversation, counsel for the appellant assured me that a motion
would be served to me in this file during the week of December
15.
18. To date, I still have
not heard from counsel for the appellant, and I have not been
served with any motions in this case.
[...]
[4] When the roll call was given at
9:30 a.m., counsel for the appellant was absent.
[5] Further to the representations of
the respondent/moving party, the Court granted the motion on the
grounds of non-compliance with the order dated July 24,
2003, by failing to file the amended notice of appeal, and
failure to appear when the respondent was making the motion.
[6] I also believe
it is relevant to refer to an extract from Adams v.
Commissioner of the Royal Canadian Mounted Police et al
(October 7, 1994), A-634-93 (F.C.A.), cited in Sidhu
v. Canada (Minister of National Revenue), [1994] F.C.J.
No. 2028 (Q.L.), in which the Honourable Judge Isaac
stated the following on November 16, 1994:
. . . The day has passed when courts could allow to
litigants the luxury of being at their beck and call. Courts are
public institutions for the resolution of disputes and cost
substantial public money. Court congestion and delay is a
serious public concern. Parties who launch proceedings at
any level with the intention of putting them in a "holding
pattern" for their own private purposes may be called to
account for their waste and abuse of a public resource.
They also risk having those proceedings dismissed.
[7] The motion to dismiss the appeal
is allowed, and the appeal under the Income Tax Act for
the 1998 taxation year is dismissed.
Signed at Ottawa, Canada, this 20th day of February 2004.
Tardif J.
Certified true translation
Colette Beaulne
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