Docket: A-358-15
Citation: 2015 FCA 195
Present: STRATAS
J.A.
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BETWEEN:
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MINISTER OF
NATIONAL REVENUE
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Appellant
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and
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ROBERT MCNALLY
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Respondent
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REASONS
FOR ORDER
STRATAS J.A.
[1]
In these unusual circumstances, the Minister
moves by informal letter for directions under Rule 54.
[2]
The Minister appeals from a judgment dated June
18, 2015 of the Federal Court (per Justice Harrington): 2015 FC 767. The
Federal Court ordered that the Minister examine the respondent’s 2012 tax
return and issue him a notice of assessment within thirty days.
[3]
Rather than staying the judgment pending appeal,
the Minister complied with it. She examined the return and issued a notice of
assessment. But the Minister nevertheless appealed from the judgment and has
continued her appeal in this Court.
[4]
The respondent wrote the Minister, advising that
since the Minister has complied with the judgment, the appeal has become moot
and should not be heard. The respondent advised the Minister that he would not
file a notice of appearance and, thus, would no longer participate in the
appeal.
[5]
The Minister, desiring to continue this appeal,
now seeks directions. She says that there is an important jurisprudential point
that needs to be resolved.
[6]
As things stand, the Minister could continue
with the appeal, filing an appeal book, a memorandum and a requisition for
hearing. The matter would then be ready for hearing. An oral hearing would be
held. No doubt, the panel hearing the appeal would raise the issue whether the
matter was moot. Because the respondent declines to participate, the Court
would receive submissions only from the Minister.
[7]
For many reasons, this is an unsatisfactory
state of affairs. The Minister would prepare material for the appeal that might
never be used. The Court would have submissions on the merits and on the issue
of mootness from only one party. An appeal hearing on the merits—a hearing that
might not be necessary—would be scheduled. A panel might have to travel
hundreds or thousands of miles to conduct the hearing.
[8]
But we are not driven to that unsatisfactory
state of affairs. This Court has a plenary power to regulate the procedure of
matters before it: Canada (National Revenue) v. RBC Life Insurance Company,
2013 FCA 50, 443 N.R. 378 at paragraph 36; Mazhero
v. Fox, 2014 FCA 226 at paragraph 9. Indeed, even under the Rules, this
Court has the power to dispense with the Rules in appropriate circumstances:
see Rule 55.
[9]
The plenary power and the discretion under Rule
55 to dispense with the Rules are governed by the objectives set out in Rule 3:
achieving the “just, most expeditious and least
expensive determination of every proceeding on its merits.” The Supreme
Court’s comments in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87
now boost the importance of these objectives.
[10]
Using these powers and in pursuit of these
objectives, the Court can raise the issue of mootness at any time on its own
motion and can call for submissions as to whether an appeal shall continue.
This often happens. For example, after reading the parties’ memoranda on the
merits of an appeal, on occasion the Court perceives that the appeal may be
moot and so it issues a direction asking for submissions on that issue.
Depending on the circumstances, the Court may request submissions in writing
before the appeal hearing to see if it can determine the matter in advance. Or
the Court may ask for oral submissions to be made at the start of the appeal
hearing.
[11]
In this particular case, bearing in mind the
objectives of Rule 3 and desiring to end the unsatisfactory state of affairs
described above—a state of affairs where a possibly moot appeal involving only
one party will languish in our system for months—this Court calls for
submissions from the parties on the issue whether this appeal should be
dismissed on account of mootness.
[12]
Submissions in chief from the respondent are not
necessary. As mentioned above, the respondent advised the Minister by letter
that he would no longer participate in the appeal owing to the fact it has
become moot. Helpfully, the respondent’s letter, already filed with the Court,
provides clear and complete argumentation on the facts and the law as to why
the appeal should be dismissed on account of mootness.
[13]
Within ten days, the Minister shall respond to
the respondent’s submissions in the letter. She may do so by filing an informal
letter setting out why the appeal is not moot and should still be heard.
[14]
Four days after the Minister has filed her
submissions, the respondent may file reply submissions, also by way of informal
letter.
[15]
The Judicial Administrator may return the matter
to me for determination.
[16]
If, in preparing her submissions, the Minister
agrees with the respondent that the appeal is moot and should not be heard, she
may terminate this appeal by filing a notice of discontinuance under Rule 165.
"David Stratas"
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