Date: 20000913
Docket: 1999-3908-IT-I
BETWEEN:
JEAN-GUY GERVAIS,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Order
Archambault, J.T.C.C.
[1] The day prior to the day set for the hearing of Mr.
Gervais’s appeals, counsel for the respondent again applied
for an adjournment on the grounds that neither the appeals
officer nor the auditor could be present at the hearing. The
appeals officer was on holiday, and the auditor had a prior
commitment to attend a meeting with people from the Department of
Agriculture.
Facts
[2] The facts that follow are taken from information provided
by counsel for the respondent and from an examination of the
Court file. First of all, Mr. Gervais filed his Notice of
Appeal with the Court on September 9, 1995. An agent of the
Canada Customs and Revenue Agency filed a Reply to the Notice of
Appeal with the Court on November 12, 1999. The Department of
Justice opened a file for Mr. Gervais’s appeal on November
25, 1999.
[3] On April 20, 2000, the Court caused a Notice of Hearing to
be sent to each party, setting July 13, 2000, as the date for the
hearing of the appeal. The Department of Justice apparently
received that Notice on April 24, 2000. Counsel for the
respondent stated that Mr. Gervais’s file was not assigned
to her until June 15, 2000, the date on which her secretary
received it. In a letter dated June 19, 2000, counsel for the
respondent asked the Court to issue subpoenas with respect to Mr.
Gervais's case, which the Court did on June 22, 2000.
[4] By letter dated July 6, 2000, counsel for the respondent
applied to the Court to have the hearing of the appeal adjourned
for the reason set out above. Although Mr. Gervais did not
object, the Associate Chief Judge denied the application for an
adjournment and the hearing co-ordinator so informed counsel for
the respondent by e-mail on July 7, 2000. Counsel for the
respondent confirmed to me that it was during the week of June 18
or 25, 2000 that she had taken steps to ensure the presence of
the auditor or the appeals officer.
DECISION
[5] As stated above, on the day before the hearing, counsel
for the respondent reiterated her request for an adjournment.
Unfortunately for her, the application was again dismissed. I
told her at that time that I would provide written reasons for my
decision.
[6] As one can see, counsel for the respondent took the steps
referred to above at the very last minute. The Department of
Justice file was opened on November 25, 1999, and that department
was notified of the hearing date on April 24, 2000, that is,
nearly three months in advance. It was not until less than a
month before the hearing of the appeal that the Department of
Justice assigned one of its lawyers to the file, and it was only
on June 19, or in the days following, that steps were taken to
ensure the presence of the department’s witnesses. It is
thus not surprising that, with so little advance notice, some
witnesses could not make themselves available.
[7] The Court has no jurisdiction to give instructions to the
respondent's lawyers regarding the management of their files.
However, the Court does have jurisdiction with respect to the
management of the appeals that it must hear. In my opinion, the
unavailability of witnesses for the hearing because counsel for
the respondent was dilatory in taking the steps required is not a
valid ground for granting an adjournment. Two precious months
were lost in preparing for the hearing of the appeal. At the very
least, the department should have notified its witnesses as soon
as it received the Notices of Hearing, in order to ensure their
attendance at the hearing.
[8] The parties, like the witnesses, are given three
months’ notice so they may take the steps necessary to be
present at the hearing. If it should prove impossible for one of
the parties or one of the main witnesses to be present, the Court
could always be notified to that effect. When informed in good
time about such a problem, the Court is more likely to receive
favourably an application for an adjournment as, in such
circumstances, it is able to hear another appeal in place of the
one postponed. However, it cannot make such a substitution if the
application for an adjournment is made on the eve of the hearing
of the appeal or even a week before. The Court has a duty to
manage appeals as efficiently as possible. In the case of appeals
brought under the informal procedure, section 18.17 of the Tax
Court of Canada Act even requires the Court to set a hearing
date within 180 days of receiving a Notice of Appeal.
[9] It is important to remember that the Court is not required
to grant an adjournment, even if all the parties agree to it. For
many years, this Court, like other Canadian courts, has been
involving itself more in appeals management so as to ensure that
the administration of justice is carried out as efficiently as
possible and that appeals are heard and decisions rendered
without undue delay.
[10] It is essential that the Department of Justice,
taxpayers, and their agents be diligent in preparing the cases
that are to come before this Court. If a party to proceedings
before this Court waits until the last minute to prepare its
case, it exposes itself to serious risks. It could, as here, find
itself forced to present its evidence in the absence of important
witnesses. In other circumstances, if an adjournment were
granted, the requesting party could be required to pay a
significant amount of money to compensate the other party, who
may have suffered harm from the adjournment.
[11] Since counsel informed me that she was prepared to
proceed without her witness if her application were dismissed,
there is no reason to order that costs be awarded to Mr. Gervais.
Accordingly, the application for an adjournment is denied.
Signed at Ottawa, Canada, this 13th day of September,
2000.
"Pierre Archambault"
J.C.C.I.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 20th day of September
2000.
Erich Klein, Revisor
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