Date: 20000107
Dockets: 98-781-IT-G; 98-784-IT-G
BETWEEN:
LOUISA HO, WILLIAM HO,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Sarchuk J.T.C.C.
[1] These are motions by the Respondent for an Order
dismissing the appeals of Louisa Ho and William Ho, or in the
alternative, for an Order providing for substituted service on
each of the Appellants of Notices to Attend for Examinations for
Discovery and an adjournment of the hearing of the appeals to 30
days after the Appellants complete the undertakings arising from
such examinations. The motions were heard together on December 9,
1999. Neither Appellant appeared. At the conclusion of the
hearing, I indicated that an Order dismissing the appeals would
be granted and that written reasons therefor would follow.
[2] The Appellants were initially represented by Fraser
Milner. Counsel withdrew as solicitors of record on March 11,
1999 and advised that the last known address for the Appellants
was 30 Greenfield Avenue, Suite 1507, Toronto, Ontario. M2N 6N3.
On April 8, 1999, a Notice of Status Hearing was forwarded to
each of the Appellants by registered mail to their last known
address. On May 13, 1999, the status hearings took place before
the Honourable Judge Bowie of the Tax Court of Canada in
Toronto, Ontario. William Ho attended and informed the Court that
he was representing himself and his sister, Louisa. By Order
dated May 17, 1999, the Court directed that the appeals of
William Ho and Louisa Ho be heard together and further directed
that each Appellant file and serve a list of documents by
September 30, 1999. Oral examinations for discovery were to be
completed by November 15, 1999; and undertakings arising from
such examinations be satisfied by December 15, 1999. The Court
records indicate that the respective Orders were sent by
registered mail to each of the Appellants at their last known
address on May 26, 1999. The records further indicate that the
registered letters were not returned. To date, the Appellants
have not complied with any of the directions made by the
Court.
[3] On September 20, 1999, counsel for the Respondent,
Christine Mohr (Mohr), caused a letter addressed to each of the
Appellants to be sent to 30 Greenfield by regular mail. On
September 29, 1999, these letters were returned to the Respondent
marked "return to sender" and "moved". On
October 13, 1999, Mohr instructed her assistant to contact
the Department of National Revenue to obtain current addresses if
available from its records for each of the Appellants. The
address provided for William Ho was 519-4005 Bayview Avenue, and
for Louisa Ho 907 B-195 St. Patrick Street, Toronto. On October
14, 1999, Mohr caused a letter to be sent to each of the
Appellants to remind them that their lists of documents were due.
In these letters she also requested that they contact her to
schedule examinations for discovery and provide her with a
current telephone number where they might be reached. Neither of
these letters was returned to Mohr, nor has she been contacted by
either of the Appellants or anyone on their behalf with respect
to these appeals.
[4] On October 28 1999, at the Respondent's request a
process server attempted to serve a Notice to Attend on Louisa Ho
at 907B-195 St. Patrick Street. This attempt of service was
unsuccessful.
[5] As a result of further information received by the process
server, John Dunsford a further attempt at service of Louisa Ho
was made by him on November 5, 1999 at suite 409A, 280 Simcoe
Street, Toronto. A copy of the Notice to Attend was left with one
Nelson Ho requiring the attendance of Louisa Ho for
examination for discovery on November 9, 1999 at the offices of
Atchison & Denman Court Reporters, Toronto. To the date of
this motion, the Respondent has been unable to locate and to
effect personal service of the Notice to Attend on
Louisa Ho.
[6] An attempt was made by the process server, Paul Dunsford,
to serve William Ho at 519-4005 Bayview, without success. Further
inquires were made by the Respondent by way of a driver's
licence search on William Ho, as a result of which Mohr requested
that the process server attempt to serve William Ho at 55
Cheeseman Drive, Markham, Ontario. Mohr has been advised by the
process server that he was unable to make personal service on
William Ho at any of the addresses available.
[7] The issue before me is whether the appeals of William Ho
and Louisa Ho should be dismissed on the basis that they failed
to prosecute their appeals with due dispatch and for their
failure to comply with the status hearing Orders of Bowie J. The
following three provisions of the Tax Court of Canada Rules
(General Procedure) permit this Court to dismiss an
appeal:
64 The respondent if not in default under these rules or a
judgment of the Court, may move to have an appeal dismissed for
delay where the appellant has failed to prosecute the appeal with
due dispatch.
91 Where a person or party who is required to make discovery
of documents under sections 78 to 91 fails or refuses without
reasonable excuse to make a list or affidavit of documents or to
disclose a document in a list or affidavit of documents or to
produce a document for inspection and copying, or to comply with
a judgment of the Court in relation to the production or
inspection of documents, the Court may,
...
(c) except where the failure or refusal is by a person
who is not a party, dismiss the appeal or allow the appeal as the
case may be,
...
125(1) Where an appeal has not been set down for hearing or
terminated by any means within six months after filing the reply
or after the last day for filing the reply, whichever is later,
subject to any direction by the Chief Judge, the Registrar or a
person designated by the Registrar, may serve on the Deputy
Attorney General of Canada and on the counsel of record for the
appellant or, where the appellant acts in person, on the
appellant, a notice of status hearing at least 30 days before the
date fixed for the hearing, and the hearing shall be held before
a judge.
...
125(5) At the status hearing
(a) if a reply has been filed the appellant shall show
cause why the appeal should not be dismissed for delay, and the
judge may
(i) if satisfied that the appeal should proceed, set time
periods for the completion of any remaining steps to set down the
appeal for hearing and either fix the time and place of hearing
or direct the Registrar to do so within a specified time and the
judge may make a direction regarding the filing of the hearing
record containing the documents described in subsection
124(1),
(ii) if not satisfied that the appeal should proceed, dismiss
it for delay, or
(iii) give such other direction as is just;
...
125(7) Where a party fails to comply with an order or
direction made under subsection (5), the Court may, on
application or of its own motion, allow the appeal, dismiss the
appeal or make such other order as is just.
[8] In addition to the affidavits filed, I reviewed the
transcript with respect to the status hearings and believe the
following facts are pertinent. The appeals were filed on February
6, 1998, and the Respondent's Reply was filed on June 4,
1998. No further action had been taken by the Appellants as of
May 13, 1999, the date of the status hearing. Bowie J. carefully
outlined the steps which the Appellants would have to take which
included providing a list of documents and conducting
examinations for discovery. To ensure that the Appellants were
aware of their rights and obligations, Bowie J. made clear both
the purpose and scope of the examinations for discovery and
emphasized the various steps that would have to be completed on
or before the dates set for that purpose. Although earlier trial
dates were available, the appeals were scheduled to be heard on
February 1 and 2, 2000 at the specific request of the
Appellants.
[9] It is the Appellants' responsibility to prosecute
their appeals without delay and with due diligence within the
prescribed Rules. In determining whether an appeal should be
dismissed, it is necessary to consider whether the taxpayer has
made any attempt to comply with the Rules or an Order of the
Court or has provided a reasonable excuse for non-compliance.[1] In this particular
case, both Appellants were represented at the status hearing,
were aware of and understood the directions made by the Court and
I am satisfied, in each case received the Order of Bowie J. dated
May 17, 1999. Since that time they have chosen to completely
ignore the Order and their failure to comply with it constitutes
a deliberate and inexcusable delay. The only logical inference to
be drawn from the Appellants is that they have no intention
whatsoever of prosecuting their appeals.
[10] Subsection 37(1) of the Rules provides that where it is
impractical for any reason to effect service of a document to be
served personally, the Court may make a direction for substituted
service. Given the circumstances, I considered this alternative
but concluded that it was not warranted. On the facts, it is safe
to say that an Order for substituted service of a Notice to
Attend on the Appellants by posting such notice in the Toronto
Star newspaper or indeed, in any other newspaper, would be a
waste of time.
[11] The appeals of the Appellants are dismissed, with costs
to the Respondent.
Signed at Ottawa, Canada, this 7th day of January, 2000.
"A.A. Sarchuk"
J.T.C.C.
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