Date: 20000615
Docket: A-683-97
QUÉBEC, QUEBEC, THE 15th DAY OF JUNE, 2000
CORAM: THE HONOURABLE MADAM JUSTICE DESJARDINS
THE HONOURABLE MR. JUSTICE LÉTOURNEAU
THE HONOURABLE MR. JUSTICE NOËL
BETWEEN:
DONALD DONOVAN
Appellant
(Plaintiff)
- AND -
HER MAJESTY THE QUEEN
Respondent
(Defendant)
JUDGMENT
The appeal is dismissed with costs.
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20000615
Docket: A-683-97
CORAM: DESJARDINS,
LÉTOURNEAU
NOËL, JJ.AA.
IN THE MATTER OF THE INCOME TAX ACT
BETWEEN:
DONALD DONOVAN
Appellant
(Plaintiff)
AND
HER MAJESTY THE QUEEN
Respondent
(Defendant)
Hearing held in Québec, Quebec, Wednesday, June 14, 2000
Judgment rendered in Québec, Quebec, Thursday, June 15, 2000
REASONS FOR JUDGMENT BY THE COURT
Date: 20000615
Docket: A-683-97
CORAM: DESJARDINS,
LÉTOURNEAU
NOËL, JJ.AA.
IN THE MATTER OF THE INCOME TAX ACT
BETWEEN:
DONALD DONOVAN
Appellant
(Plaintiff)
AND
HER MAJESTY THE QUEEN
Respondent
(Defendant)
REASONS FOR JUDGMENT
BY THE COURT
[1] We are of the opinion that this appeal should be dismissed with costs. The appeal is from a decision of the Associate Chief Justice Jerome by which, on October 9, 1997, he dismissed an application by the appellant to set aside the peremption of suit order rendered against him on July 24, 1996.
[2] Briefly, the facts at the origin of this litigation, and that illustrate the content thereof, are the following.
[3] In February 1988, the appellant appealed a decision of the Tax Court of Canada. It concerned an assessment issued against the appellant by Revenue Canada in relation to the evaluation the appellant had made of shares he was holding as of December 31, 1971 in a private company.
[4] In March of 1988, the respondent filed a defence to the appeal. Subsequently, no meaningful proceeding was recorded in the file for eight years and on March 1, 1996, Associate Chief Justice Jerome sent the appellant's counsel a notice inviting him to file a motion for directions to ensure either that the appeal would be heard or that the dispute would be definitively settled, failing which the appeal would be dismissed.
[5] Appellant's counsel submits that this notice was received in his office while he was on vacation and it was erroneously not brought to his attention. He never replied, therefore, to the Court's invitation and his appeal was dismissed, as mentioned earlier, on July 24, 1996. He adds that, as the victim of a second error, he did not inform his client of the dismissal of the appeal because he thought the client was aware of the peremption of suit order. This second error likewise resulted in a third, since he thought and inferred from his client's silence that the latter was no longer interested in pursuing his litigation in the Court. However, this misunderstanding was dispelled in early June 1997, when his client, fighting a tax liability claim by Revenue Canada's collection department, contacted him and indicated his intention to pursue the appeal that had been dismissed.
[6] Citing [1978] 2 S.C.R. 516">Cité de Pont Viau v. Gauthier Mfg. Ltd., [1978] 2 S.C.R. 516, at page 519; [1979] 1 S.C.R. 511">Bowen v. City of Montreal, [1979] 1 S.C.R. 511; and Malowitz v. M.N.R., 91 DTC 837 (T.C.C.), and acknowledging his mistakes, the appellant's counsel submits that a party should not be deprived of his right by his solicitor's error when it is possible to remedy the consequences of that error without injustice to the adverse party, which, he argues, applies to the case at bar.
[7] Even if this argument of appellant's counsel was conceded to have merit, it is still necessary that the party who has been deprived of his right has not placed himself in that situation as a result of his own carelessness, mistake or negligence ([1978] 2 S.C.R. 516">Cité de Pont Viau, supra, at pages 521 and 528). Furthermore, as the Supreme Court of Canada states in Construction Paquette v. Entreprises Végo, [1997] 2 S.C.R. 299, at pages 313 and 314, a solicitor who has made a mistake must prove diligence in order to remedy the mistake. In our opinion, this includes taking measures to inform a client forthwith of the dismissal of his appeal and obtain appropriate instructions in these circumstances.
[8] In the case at bar, the mistakes of the appellant's counsel cannot be dissociated from his client's negligence and lack of care in diligently pursuing the proceedings he had commenced. The appellant's inaction for eight years remained without explanation, even at the crucial stage of the application made to Associate Chief Justice Jerome to set aside his peremption of suit order.
[9] Furthermore, not only did the appellant fail to demonstrate due diligence in the pursuit of his appeal, but he never established clearly before the Associate Chief Judge the interest he had in continuing the appeal, other than to state without really demonstrating it that the appeal was not unreasonable or dilatory.
[10] Finally, the appellant's counsel states, in his memorandum, that he wrote to his client on April 22, 1996 to put a possible settlement to him. Yet he also states that it was not until early June 1997, more than a year later, when the Revenue Canada recovery proceedings were under way, that the appellant contacted his counsel to follow up on the latter's letter. The appellant's conduct in our opinion testifies to a lack of diligence resulting from a lack of interest.
[11] We are of the opinion that, in the circumstances, Associate Chief Justice Jerome judiciously exercised his discretion when he refused to set aside the peremption of suit order of July 24, 1996. For these reasons, the appeal will be dismissed with costs.
Alice Desjardins
J.A.
Gilles Létourneau
J.A.
Marc Noël
J.A.
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF APPEAL
Date: 20000615
Docket: A-683-97
BETWEEN:
DONALD DONOVAN
Appellant
(Plaintiff)
AND
HER MAJESTY THE QUEEN
Respondent
(Defendant)
REASONS FOR JUDGMENT
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
Appellant
(Plaintiff)
- AND -
HER MAJESTY THE QUEEN
Respondent
(Defendant)
| PLACE OF HEARING: Québec, Quebec |
| DATE OF HEARING: June 14, 2000 |
REASONS FOR JUDGMENT OF THE COURT: Desjardins
Létourneau
Noël JJ.A.
DATED: June 15, 2000
APPEARANCES:
Jules Turcotte for the appellant
Marie-Andrée Legault for the respondent
SOLICITORS OF RECORD:
BEAUVAIS TRUCHON & ASS.
Québec, Quebec for the appellant
Morris Rosenberg
Deputy Attorney General of Canada for the respondent
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