Huskinson v. Canada, 2004 FCA 333

Date: 20041005

Docket: A-122-04

Citation: 2004 FCA 333

Present:           ROTHSTEIN J.A.

BETWEEN:

                                                           LINDA HUSKINSON

                                                                                                                                            Appellant

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                        Respondent

                                        Dealt with in writing without appearance of parties.

                                     Order delivered at Ottawa, Ontario, October 5, 2004.

REASONS FOR ORDER BY:                                                                                 ROTHSTEIN J.A.

Date: 20041005

Docket: A-122-04

Citation: 2004 FCA 333

Present:           ROTHSTEIN J.A.

BETWEEN:

                                                           LINDA HUSKINSON

                                                                                                                                            Appellant

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

ROTHSTEIN J.A.

[1]                This is an appeal from a decision of Mogan J. of the Tax Court under the Informal Procedure.

[2]                On September 8, 2004, Linden J.A. issued the following direction:

Inform appellant that Appellant's Record must be filed by September 30, 2004.

[3]                By letter of September 23, 2004, the appellant advised that she will not be filing her Record by September 30, 2004. The appellant seems to object to the affidavit filed on behalf of the respondent. At the same time, she complains that there is no respondent to cross-examine. She then says that she knows she will not receive a fair hearing and that she will not be treated equally and fairly in the process. The appellant says she will not file her Record unless it can be clearly demonstrated "that there is a legitimate respondent with personal knowledge of this case who has definite opposing issues."

[4]                The appellant may cross-examine on the respondent's affidavit if she wishes and in this respect, she should immediately communicate with counsel for the respondent. The Court requests counsel for the respondent to assist the appellant in arranging for a reporter and a transcript, although if she wishes to cross-examine, unless the Court orders otherwise at the conclusion of the appeal, costs for the reporter and transcript will be for her account. Cross-examination on the affidavit shall be completed on or before October 22, 2004.

[5]                If the appellant still has concerns after cross-examination and wishes to object to the respondent's affidavit or anything contained in it, she may do so and the Court will consider her objection. However, what she has written in her September 23, 2004, letter does not constitute a valid objection. If she wishes to object, she shall do so by filing a brief and succinct letter explaining her objection on or before November 5, 2004.

[6]                As to the fairness of the proceedings, both the appellant and respondent are subject to the Rules of the Court and the Rules are applied to each equally. On a review of the Court file, there is no unfairness in what has transpired to date. Both the appellant and respondent have filed affidavits. Both are entitled to file Records. If the appellant wishes the appeal to proceed, the next step is the filing of the Appellant's Record. The appellant has been given notice by the Court that she should have filed her Record by September 30, 2004, and she has not done so. The appellant is now notified that her Record shall be served and filed on or before November 19, 2004. Should the Appellant's Record not be served and filed by that date, the Court will consider the appeal abandoned and the appeal will be dismissed without further notice.

[7]                I should make one further observation. The appellant says that she will not file her Record unless it is demonstrated that there is a legitimate respondent who has definite opposing views to hers. The respondent obviously is opposing her appeal. The appellant must understand that her appeal is from a judgment of the Tax Court that found against her, not from anything the respondent says or does not say. Her task is to demonstrate to this Court why the Tax Court judgment is in error. When the appellant files her Record, her Memorandum of Fact and Law should address the errors she alleges in the Tax Court judgment.

                                                                             "Marshall Rothstein"                

                                                                                                      J.A.

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       A-122-04

STYLE OF CAUSE:       LINDA HUSKINSON

                                                                                                                               Appellant

                                                                     and

                                              HER MAJESTY THE QUEEN

                                                                                                                           Respondent

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:                                  ROTHSTEIN J.A.

DATED:                                                          October 5, 2004

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: