Brace v. Canada, 2014 FCA 122

Date: 20140512

Docket: A-556-12

Citation: 2014 FCA 122

Heard at Edmonton, Alberta, on May 7, 2014.

Judgment delivered at Ottawa, Ontario, on May 12, 2014.

Date: 20140512

Docket: A-556-12

Citation: 2014 FCA 122

REASONS FOR JUDGMENT OF THE COURT

[1]               Mr. Brace appeals the order of Campbell J. of the Tax Court of Canada (the judge) dismissing his appeal following an ex parte status hearing during which the respondent made an oral motion for dismissal pursuant to Rule 64 of the Tax Court of Canada Rules (General Procedure), SOR/90-688a.

[2]               The record before us shows that Mr. Brace was unaware of this status hearing held on June 13, 2012, that is a mere two days after the issuance of the scheduling order dated June 11, 2012.

[3]               Moreover, Mr. Brace was not notified of the respondent’s intent to move for a dismissal of his appeal. It also appears from the transcript that the judge was not informed by counsel for the respondent that he had agreed with Chief Justice Rip at the April 30, 2012 status hearing that if Mr. Brace could not be contacted before the end of June 2012, his appeal would simply be scheduled for hearing without further notice.

[4]               Considering these irregularities, we are of the view that Mr. Brace’s right to procedural fairness was breached. Our Court’s intervention is thus warranted.

[5]               The appeal will be allowed and the order of Campbell J. set aside. The file will be returned to the Tax Court of Canada to set a date for hearing of Mr. Brace’s appeal in accordance with this Court’s judgment dated April 11, 2011 in Brace v. Canada, 2011 FCA 131.

"Eleanor R. Dawson"

"Johanne Gauthier"

"Johanne Trudel"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: