Date:
20070227
Docket:
A-87-06
Citation:
2007 FCA 86
CORAM: LÉTOURNEAU
J.A.
EVANS
J.A.
PELLETIER
J.A.
BETWEEN:
JOSE DAKILA
C. TOMAS
Appellant
and
HER MAJESTY
THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Winnipeg, Manitoba, on February 27, 2007)
LÉTOURNEAU
J.A.
[1]
The
appellant attacks a decision of judge Bell (motions judge) of the
Tax Court of Canada rendered on January 11, 2006. Sitting as a motions judge,
judge Bell dismissed
the appellant’s motion to set aside a judgment of judge Bowie rendered on
August 27, 2004. Judge Bowie granted the respondent’s motion to dismiss the
appellant’s appeal from his tax assessments on the ground that the appellant
did not appear at the hearing.
[2]
The
appellant submits that the motions judge erred in refusing to set aside judge Bowie’s decision.
The respondent concedes that the motions judge erred in concluding that he had
no discretion to extend the time-limit set out in Rule 140 of the Tax Court
of Canada Rules (General Procedure). However, she submits that the motions
judge, nonetheless, came to the correct result because the facts and
circumstances of the case militate against granting an extension of time.
[3]
A
summary of the relevant facts is necessary for a proper understanding of the
events that culminated in the dismissal of the appellant’s appeal.
[4]
The
appellant appealed from tax assessments for the years 1996, 1997 and 1998.
Initially, he filed his appeal under the informal procedure. By order of judge
Hershfield, he was ordered to file an Amended Notice of Appeal under the
general procedure as his appeal exceeds the monetary limits for the informal
procedure: see respondent’s Book of Authorities, Tab 1. Judge Hershfield set
the time limit for examinations for discovery as 60 days after the close of
pleadings, and the time limit for the completion of undertakings given at
discovery as 90 days after the close of pleadings.
[5]
The
appellant filed his Amended Notice of Appeal on February 14, 2003: see Appeal
Book, pages 17-19. The respondent filed a reply on May 9, 2006: ibidem,
pages 22-32. The appellant did not respect the timelines set for examinations
for discovery and the completion of undertakings. The respondent therefore made
a motion to dismiss for delay. Judge Hershfield dismissed the motion: see
respondent’s Book of Authorities, Tab 2. However, he ordered the appellant to
pay costs to the respondent, set new time limits for the examinations and
undertakings (March 15, 2004 and April 14, 2004, respectively), and set down
the appeal for hearing on June 8, 2004: see respondent’s Book of Authorities,
Tab 3.
[6]
As
of May 28, 2004, two of the appellant’s undertakings were still outstanding:
see Appeal Book, page 38. These undertakings were to obtain certain bank
statements. The appellant had been unsuccessful in obtaining them, but said he
had consented to the respondent attempting to obtain the statements from the
banks in question: see appellant’s Memorandum of Fact and Law, page 1. On July
13, 2004, counsel for the respondent sent a letter to appellant’s counsel,
asking for an explanation for the delay: see Appeal Book, page 85. Counsel for
the appellant stated before the motions judge that he was on vacation when the
July 13 letter was sent, and submitted that the letter was never received at
his office. The respondent received no response and filed a motion to dismiss
for delay. According to the respondent, appellant’s counsel was served with the
motion materials by facsimile: see affidavit of Zorn, Appeal Book, page 50. The
appellant’s counsel claims to have never received these materials and to have
never received notice of the motion: see affidavit of the appellant, Appeal
Book, page 41.
[7]
When
the motion to dismiss came before judge Bowie, no one appeared on behalf of the
appellant. The respondent made an oral motion to dismiss the appeal for
non-appearance. After waiting quite some time for the appellant or his counsel
to appear, judge Bowie granted the motion.
[8]
On
August 30, 2004, Ms. Sylvie Gallo-Daccash of the Tax Court of Canada mailed a
copy of judge Bowie’s judgment
to appellant’s counsel: see affidavit of Zorn, Appeal Book, page 50. Appellant’s
counsel claims never to have been made aware of the judgment: see Transcript of
Motion Proceedings, pages 93 and 105. On November 14, 2005, the appellant filed
a motion to set aside judge Bowie’s judgment: see Appeal Book, pages 33-36.
[9]
The
appellant’s motion to set aside judge Bowie’s decision was made
fourteen (14) months after it was rendered while Rule 140(2) of the Federal
Courts Rules requires that the motion be made within thirty (30) days after
the pronouncement of the judgment. Yet, no application for an extension of time
was made by counsel for the applicant as permitted by Rule 12.
[10]
While
it is true that the motions judge was mistaken when he stated that he had no
discretion to grant the appellant’s motion as it was made more than thirty (30)
days after the pronouncement of the judgment, the fact remains that no
application was made to the Tax Court of Canada for an extension of time.
[11]
The
appellant’s Memorandum of Fact and Law in this appeal does not address that
issue either. It contains no discussion of the factors usually considered on
such applications, i.e. a continuing intention to pursue the appeal, that the
appeal has some merit, that no prejudice to the respondent arises from the
delay and that a reasonable explanation is given for the delay: see Canada (Attorney
General) v. Hennelly (1999), 244 N.R. 399; Rosen v. Canada,
[2000] F.C.J. No. 415 (Q.L.); Canada (Minister of Human Resources
Development) v. Hogervorst, 2007 FCA 41, at paragraph 32.
[12]
Counsel
for the respondent invited us to exercise the discretion that should have been
exercised by the motions judge, judge Bell of the Tax Court of
Canada. She submitted that there is no evidence on the record that the appeal
has merit. In addition, she argued that the delay in setting aside the decision
of judge Bowie is simply not reasonable and justifiable.
[13]
Counsel
for the appellant initially requested that we set aside judge Bowie’s decision.
That decision is not before us. He then asked that his appeal be allowed and
the matter be remitted to the motions judge for a decision on a possible
extension of time.
[14]
For
the sake of judicial economy and in order to save time, we are of the view that
we should dispose of this issue.
[15]
The
appellant has provided no evidence that there is merit to his appeal. He is
claiming an allowable investment business loss incurred in 1995 while the
taxation years in dispute are 1996 to 1998. He did not claim that loss in his
income tax returns for the 1996, 1997 and 1998 taxation years. The claim
appeared for the first time during the minister’s reconsideration of the
appellant’s Notice of Objection to a reassessment for the 1998 taxation year.
[16]
Furthermore,
we agree with counsel for the respondent that the appellant’s explanation for
the delay in applying to set aside judge Bowie’s decision
is unreasonable. His only justification is his counsel’s unsworn claim that he
did not receive either the notice of motion, with supporting materials, served
by fax by the respondent, or the judgment sent to him by mail by the Tax Court
of Canada.
[17]
In
addition, according to the record, the appellant has not shown great enthusiasm
in pursuing his appeal. He has been loath to comply with the deadlines imposed
for the completion of various procedural steps. From May 28, 2004 to October 12,
2005, he or his counsel never communicated with the respondent’s office in
respect of the appeal although, as found by judge Bowie, two undertakings had
still not been fulfilled.
[18]
For
these reasons, we are of the view that an extension of time is neither
justified nor warranted in the circumstances. The appeal will be dismissed with
costs and the extension of time denied.
“Gilles
Létourneau”
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