Date: 20010803
Docket: 2000-4047-IT-I
BETWEEN:
JAMES JOHNSTON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
For the Appellant: No one appeared
Counsel for the Respondent: Christa MacKinnon
____________________________________________________________________
Reasons for Judgment
(Delivered orally from the Bench at Saint John, New Brunswick,
on July 12, 2001)
Bowie J.
[1]
Ms. MacKinnon, since I told you this morning of the telephone
conversation that had been relayed to me, I have heard from the
trial coordinator in Ottawa that he has received two voice mail
messages from Dr. Johnston. The first of those was to the effect
that he would not be appearing today, and that he would not be
appearing tomorrow. The second of those was to the effect that he
had thought it over and he would be filling out subpoenas
returnable for 9:30 a.m. and 12:30 p.m. Now, that is
somewhat lacking in particularity, but I presume that that is a
reference to Friday, July 13 at 9:30 a.m. and 12:30 p.m. As to
the question of who he proposes to subpoena, I have no idea. I
simply pass that on to you so that you will know what Dr.
Johnston has communicated to the Court.
[2]
MS.
MacKINNON:
Your Honour, just the voice mail message was received today that
he would not be appearing today and he would not be appearing
tomorrow?
HIS HONOUR: That was the first
one this morning that the trial coordinator got. The second one
related to the subpoenas.
MS.
MacKINNON:
Your Honour, if it is appropriate, the Respondent would like a
motion at this point to dismiss this appeal. The Appellant has
not appeared. We have not had any medical certificate showing why
he has not appeared. If the Court would entertain a motion to
dismiss the Respondent would love to make it at this point.
HIS HONOUR: Well, the chronology
of this matter as best I can put it together is that Dr. Johnston
was sent a Notice of Hearing at the end of May this year which
provided that his hearing was to take place on July 13, which is
tomorrow. He wrote a letter, dated May 21, to the trial
coordinator, in which he referred to himself as physically
incapacitated. He requested in that letter that his appeal be
heard by teleconference or by 40-minute sessions with a two-hour
break, and a maximum of two sessions per day. And then he goes on
to refer to his severe spinal disability, and finally says,
"I am litigating the Tax Court" - I presume it
means in the Tax Court - "only for breach of section
15 of the Charter of Rights". I am not quite sure what that
means in the context of what he said on Tuesday of this week
about his grounds of appeal.
[3]
At any rate, that letter is postmarked June 13, 2001, 4:31 p.m.,
although it was dated May 21, and it was in fact received June
21, 2001, by the Court. It was considered by the Chief Judge
- and I think I said this on Tuesday in
Dr. Johnston's presence - the Chief Judge
determined that there would not be an appeal heard by
teleconference, but that the Court would accede to his request
that his appeal be heard in sessions of 40 minutes, no more than
twice a day, and with at least two hours between each of them. In
order to accommodate that, and having in mind that the Court,
being an itinerant Court, which sits for a week in any given
place, and had scheduled actually four days of sittings in Saint
John for this week, the trial coordinator wrote to Mr. Johnston
- and I do not have the exact date of that letter before
me, but it was about two weeks ago now - and indicated to him
that, to accommodate his request, the appeal hearing would begin
on Tuesday July 10, 2001, at 9:30 a.m., and that on that day
there would be two 40-minute sessions, and that there would be at
least one, and if possible two, 40-minute sessions on each
of Wednesday, July 11, and Thursday, July 12, which is today. And
if necessary, two more sessions could be held on Friday, July 13,
that date being entirely reserved for Dr. Johnston's appeal
when appeals were scheduled for the week.
[4]
Dr. Johnston appeared here on the morning of Tuesday, July 10,
2001, at 9:30 a.m. At that time he asked me to recuse myself, and
he asked for an adjournment of his appeal even if I chose not to
recuse myself, on the basis that he was no longer being given 30
days' notice of the hearing of his appeals as the
Rules provide for, in as much as it was less than 30 days
prior to July 10 when he was told that we would begin on July
10.
[5] I
considered his motions during the two-hour interval between the
two 40-minute sessions that were held on Tuesday, and after
careful consideration of my Reasons for Judgment, given about
four years ago, and the passage in particular to which Dr.
Johnston alluded, I reached the conclusion -- and I expressed
this at the beginning of the second 40-minute session on July 10
- that my previous Reasons for Judgment were not such as to
raise any reasonable apprehension of bias on the part of anyone
apprised of the facts and having reasonable ability to
understand; so I decided, and conveyed to him at that time, that
I would not recuse myself. I should perhaps mention that Dr.
Johnston made no suggestion or allegation of actual bias on my
part, as the motion was founded entirely on a reasonable
apprehension of bias, which he submitted came out of my earlier
Reasons.
[6]
The balance of the second 40-minute session on July 10 was taken
up going through Dr. Johnston's two handwritten letters which
constitute his Notice of Appeal, with a view to trying to
ascertain for the benefit of the Court what the exact issues
being raised by him are. I should say also that I dealt with his
application to adjourn the hearing at that time as well. He was
unable to suggest to me any prejudice that he might suffer by
having to begin on Tuesday, and continue on Wednesday and
Thursday, rather than not beginning his appeal until the date
scheduled, Friday, July 13. I indicated to him that since he was
unable to tell me of any evidence that he wanted to call that
would not be available before that date, and he was unable to
point out any possible prejudice to me, I did not propose to
adjourn the appeal with the concomitant waste of court time
which, of course, represents public resources. I did say to him,
however, that if the circumstances made it necessary to re-open
the Appellant's case on Friday, July 13 to call additional
evidence not otherwise previously available then I would be
amenable to any such motion on his behalf.
[7]
At the conclusion of the second 40-minute session on Tuesday, the
matter was put over to recommence the following morning at 9:30
a.m. with a view to having two 40-minute sessions on Wednesday,
July 11, if possible. And as history devolved it would in fact
have been possible in yesterday's schedule to have fit in a
second 40-minute session for Dr. Johnston. However, at about
4:30 p.m. on Tuesday, July 10, Dr. Johnston telephoned the
trial coordinator's office and advised the coordinator that
as a result of the two 40-minute sessions held on Tuesday,
July 10 "his leg was ‘twitching' and that he
would probably not be able to attend the third session"
scheduled for July 11 at 9:30 a.m. And he went on to indicate
that he was not sure if he would be able to attend on Wednesday
afternoon either. The trial coordinator indicated to him that he
should telephone the Court in Saint John and advise the
Registrar here, Madame Plourde, to that effect.
[8]
On Wednesday morning, I directed the Registrar, Madame Plourde,
to telephone Dr. Johnston and inform him that he would be
expected to appear at 2:00 p.m. for the continuation of his
appeal, he not having appeared when the matter was called at 9:30
a.m., and to indicate to him that if he was unable to be here for
medical reasons that he should have somebody attend on his behalf
bringing a medical certificate that would confirm that his
medical condition is such as to prevent his attendance.
[9]
Dr. Johnston did not attend either on Wednesday at 9:30 a.m., as
I have said, nor on Wednesday at 2:00 p.m. He did, however, have
a letter delivered to the Court prior to 2:00 p.m. in which he
said -- and I have paraphrased this letter on the record earlier
-- that his doctor is on vacation; that he called a
Dr. Maloney three times and was unable to get an answer;
that another doctor was out of town and couldn't be reached,
and that generally it was impossible for him either to attend, or
to have a medical certificate brought to the Court. Along with
that letter was a photocopy of a letter addressed "To Whom
It May Concern" dated July 5, 2000 signed by a Dr. D.C.
Macmichael, which reads:
This gentleman apparently is involved in a court case. He is
concerned that he will have to sit for prolonged periods of time,
or he may have to leave in the middle of the case.
He is very sore with sitting for very short periods of time
and I would think that twenty minutes to half an hour is the
maximum he could sit. He would then need to lay down for an hour
or so to rest.
He does have numerous medical conditions as well as spinal
stenosis of the spine, pinching the nerves causing discomfort
with any prolonged sitting.
He feels he could manage if he could sit for twenty minutes or
half an hour, rest for an hour and then go back for another
twenty minutes or half hour.
I hope this will be of some help with his proceedings.
Now, as I noted, that letter is dated slightly more than a
year ago, July 5, 2000 and I am not aware of any more recent
letter from a medical practitioner dealing with the question of
Dr. Johnston's ability or inability to attend Court.
[10] The Chief
Judge made his direction as to the manner of the hearing upon the
statement of Dr. Johnston in his letter of May 21, 2001, without
requiring any further medical opinion - or I should perhaps
say any medical opinion -- to support it. Following Dr.
Johnston's non appearance at 2:00 p.m. on Wednesday, July 11,
I directed the trial coordinator to telephone Dr. Johnston and
indicate to him that he should attend court on Thursday, July 12
at 9:30 a.m. ready to proceed, or produce a medical certificate
from a doctor indicating that his medical condition would
prohibit him from being in court this morning. The trial
coordinator did that, and the reply to him from Dr. Johnston was
to ask him to relay to me that he would probably not be able to
attend court Thursday morning at 9:30 a.m.; that he tried to
obtain a medical certificate but could not; and that
"maybe" he would be in court on Friday, July 13 at
9:30 a.m.
[11] Since
that time Dr. Johnston has left two voice mail messages for the
trial coordinator in Ottawa. The first of those was to the effect
that he would not attend court either today, July 12, or
tomorrow, July 13. The second of those was to the effect that he
might reconsider with respect to July 13, and that he was
proposing to issue subpoenas returnable July 13 at 9:30 a.m. and
at 2:30 p.m. I am sure it would be obvious to Dr. Johnston at
this point that if his appeal were begun tomorrow, or for that
matter if it were begun today, it is most unlikely that I would
be able to complete the hearing of it before the end of this
week. The scheduling in this court is done six to nine months in
advance, and it would not be particularly desirable for me to
become seized of a case that I am unable to complete. And if I
did become seized, it would most likely be many months, perhaps a
year or more, before it would be possible to complete the hearing
of it. The inconvenience to the Appellant, to the Respondent, to
the Court and to other litigants has already been significant but
would become much more significant.
[12] As I said
yesterday, I could understand that Dr. Johnston might have some
difficulty reaching a doctor on very short notice to examine him
and write a report as to his ability, or lack of it, to attend
court. That was yesterday. Today is some 27 hours later. Absent
either Dr. Johnston or some current written statement from a
medical practitioner that his condition is such that he is unable
to attend court, and when I say unable, I mean unable as opposed
to it would be difficult or uncomfortable for him to attend
court, because the Court has already gone a long way to
accommodate the pain which he says he suffers, I am not inclined
to adjourn this matter any further.
[13] I think
it is a reasonable inference to draw that Dr. Johnston's
absence from Court on Wednesday, July 11 and on Thursday, July 12
is attributable more to his dissatisfaction with my ruling on his
motion to recuse myself, and with my ruling on his motion to
adjourn the hearing of his appeal, which of course would have the
same practical effect as if I had granted his motion to recuse
myself, than with his condition. I am going to dismiss Dr.
Johnston's appeal for non-attendance. It is true that he
attended the two 40-minute sessions held on Tuesday. No evidence
was heard during those sessions. The onus of proof lies with the
Appellant and the Appellant is not here to give any evidence to
discharge that onus of proof.
[14] I have a
motion from the Crown to dismiss the appeal and I propose to do
so. However, I am going to add this: I will not sign the formal
judgment to that effect before August 1, 2001. I am going to
direct that the transcript this morning of my Reasons for
dismissing the appeal be prepared on an expedited basis, and that
it be sent to Dr. Johnston by ordinary and by registered mail,
and also to the Respondent. If I receive an independent medical
certificate in satisfactory form which states unequivocally that
Dr. Johnston's medical condition, as it manifested itself
this week, was such that it would have been impossible for him to
attend court on Wednesday, July 11 or on Thursday, July 12
- and when I say "impossible" I do not mean
that it would have been uncomfortable for him; I do not mean that
it would have caused him some pain; I mean that it would not have
been possible for him to proceed within the parameters set for
the hearing of his appeals, then I may adjourn the matter sine
die rather than sign the formal Order dismissing the appeals.
There is, I think, authority in the jurisprudence that I am not
functus officio until such time as the Order in writing is
signed. Any such medical certificate should, of course, be sent
to the Registrar's office in Ottawa, and a copy of it should
be sent at the same time to counsel for the Respondent at her
office in Halifax.
[15] That is
my disposition of the matter.
Supplementary Reasons for Judgment
[16] On July
12, I delivered Reasons for Judgment at Saint John,
New Brunswick, dismissing these appeals. In those Reasons
for Judgment, I said that I would not sign the Judgment until
August, in order to give the Appellant an opportunity to obtain a
current medical certificate that might justify his absence from
Court on July 11 and July 12. Those Reasons for Judgment were
sent to the Appellant on July 16.
[17] The
Appellant has since written to the Registrar of the Court[1] saying, among other
things, that he would provide a current medical certificate. None
has been received, however, and I have therefore signed Judgment
dismissing the appeals.
[18] I should
add that the Court file contains a photocopy of a medical
certificate of Dr. Douglas Macmichael dated June 18, 2001, which
I failed to mention in my oral Reasons of July 12, 2001. This
certificate suggests that the Appellant could sit for 10 to 40
minutes before experiencing distracting pain. It is not clear how
this came to be on the Court file, but it may well be the basis
upon which the Chief Judge agreed to the Appellant's request
to have the hearing conducted in 40-minute sessions. In any
event, it does not explain the Appellant's absence on July 11
and July 12, 2001.
Signed at Ottawa, Canada, this 3rd day of August, 2001.
"E.A. Bowie"
J.T.C.C.
COURT FILE
NO.:
2000-4047(IT)I
STYLE OF
CAUSE:
James Johnston and Her Majesty the Queen
PLACE OF
HEARING:
Saint John, New Brunswick
DATES HEARING
CALLED:
July 10, 11 and 12, 2001
REASONS FOR JUDGMENT
BY:
The Honourable Judge E.A. Bowie
DATE OF
JUDGMENT:
August 3, 2001
APPEARANCES:
For the
Appellant:
The Appellant himself on July 10, 2001
No one appeared on July 11 and 12, 2001
Counsel for the
Respondent:
Christa MacKinnon
COUNSEL OF RECORD:
For the
Appellant:
Name:
N/A
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2000-4047(IT)I
BETWEEN:
JAMES JOHNSTON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeals called for hearing on July 10, 11 and
12, 2001, at Saint John, New Brunswick, before the
Honourable Judge E.A. Bowie
Appearances
For the
Appellant:
The Appellant himself on July 10, 2001
No one appeared on July 11 and 12, 2001
Counsel for the Respondent: Christa
MacKinnon
JUDGMENT
The
Appellant having appeared before the Court on July 10, 2001, and
it having been ordered that the hearing of his appeals would
continue on July 11, 12 and 13, 2001;
And the Appellant having failed to appear on July 11 and 12,
and having failed to provide evidence of his inability to appear
on those dates;
And
counsel for the Respondent having moved for dismissal of the
appeals;
The
appeals from assessments of tax made under the Income Tax
Act for the 1996, 1997 and 1998 taxation years are
dismissed.
Signed at Ottawa, Canada, this 3rd day of August, 2001.
J.T.C.C.
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