Date: 20110722
Docket: A-183-10
Citation: 2011 FCA 231
CORAM: DAWSON J.A.
BETWEEN:
RALPH DONCASTER
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
DAWSON J.A.
[1]
Mr.
Doncaster, the appellant, appeals from a decision of the Tax Court of Canada.
The appeal has been perfected, and on June 30, 2011 Mr. Doncaster filed a
requisition for hearing.
[2]
However,
on June 6, 2011 Mr. Doncaster also filed a motion in writing seeking an order that
“the Respondent shall follow the timeline provided for by the rules or his case
could be dismissed without further notice” (the timeliness motion). The
affidavit filed in support of the timeliness motion explains that the motion is
based upon the alleged failure of the respondent to serve a motion record upon
Mr. Doncaster on a timely basis in November of 2010.
[3]
Mr.
Doncaster’s timeliness motion precipitated the following:
• On
June 9, 2011, the respondent filed her responding motion record. The record contained
an affidavit (disputed affidavit) that dealt with the respondent’s efforts to
serve its responding record upon Mr. Doncaster in November of 2010.
• On
June 15, 2011, Mr. Doncaster served a document upon the respondent entitled
“Written Examination” that stated he had chosen to examine the respondent for
discovery in writing. A schedule of questions was attached. All of the attached
questions were directed to the affiant of the disputed affidavit.
• On
June 20, 2011, the respondent advised that the questions would not be answered.
• On
June 23, 2011, Mr. Doncaster served, but did not file, a motion record in which
he moved in writing for an order that the respondent answer the written
examination questions. He asserted his right to cross-examine the affiant upon the
disputed affidavit.
• On
July 4, 2011, the respondent attempted to file her response to the June 23,
2011, unfiled motion.
• On
July 8, 2011, Mr. Doncaster attempted to file the June 23, 2011 motion.
[4]
The
time has now expired for Mr. Doncaster to file a reply to the responding
submissions of the Crown to the timeliness motion, and no extension has been
sought. The timeliness motion is now properly before the Court.
[5]
The
Registry has requested directions as to whether to accept for filing Mr.
Doncaster’s June 23, 2011 motion and the respondent’s responding record. The
Registry notes that a requisition for hearing has been filed and so there are
no further documents to be filed.
[6]
In
my view, the parties have unnecessarily complicated and protracted Mr.
Doncaster’s timeliness motion. That motion must be put in its temporal context,
which is as follows:
1. On April 4,
2011, the Administrator caused the appeal book to be filed.
2. On May 9,
2011, the respondent consented to a 15-day extension for the appellant to file
his memorandum of fact and law.
3. On May 19,
2011, the appellant’s memorandum of fact and law was filed.
4. On June 6,
2011, the timeliness motion was filed.
5. On June 20,
2011, the respondent’s memorandum of fact and law was filed.
6. On June 30,
2011, the appellant filed a requisition for hearing.
[7]
By
the time the timeliness motion was put before the Court there was no step left
for the respondent to take. There is no purpose to be served by the requested
order. The timely filing of the respondent’s memorandum of fact and law has
rendered the timeliness motion hypothetical and moot. Moreover, the disputed
affidavit is irrelevant. No purpose can be served in cross-examining upon a
document the Court will not rely upon and has not relied upon. The timeliness
motion is moot regardless of what may have transpired in November of 2010.
[8]
On
a motion costs are generally awarded to the successful party. There is no
reason to depart from that general principle.
[9]
An
order will therefore issue dismissing the timeliness motion with costs to the
respondent. A direction will issue directing the Registry not to file the
motion records relevant to Mr. Doncaster’s request to cross-examine upon the
disputed affidavit. The motion records shall not be filed because the motion to
cross-examine is moot.
“Eleanor R. Dawson”
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