Justis Raynier v. Minister of National Revenue, [1990] 2 CTC 2379, 90 DTC 1387

Morgan, T.C.J. [Orally]:—An order will be granted dismissing for want of prosecution the appeals of the appellant, Justis Raynier, for the taxation years 1980, 1982, 1983, 1984, 1985 and 1986 based on the following six facts summarized by counsel for the respondent.

First, there was a judgment issued by this Court on November 26, 1988 dismissing the taxpayer's appeals for the 1979 and 1981 taxation years.

Second, there was a letter sent by counsel for the Minister of National Revenue on June 8, 1989 to the Tax Court of Canada with a copy to the appellant, Justis Raynier, stating that the respondent was seeking a hearing at the earliest possible sitting of the Court and that the Minister would be seeking an order under section 179.1 of the Income Tax Act.

The third, the Minister's reply to the notice of appeal herein in paragraph 11 indicated that the Minister would seek an order under section 179.1 of the Income Tax Act.

Fourth, in an affidavit by Mr. Weder filed in support of the motion there is a statement that Mr. Weder has the conduct of this appeal and that he has received no communication from the appellant indicating that he plans to pursue his appeal.

Fifth, the appellant failed to respond to a notice of hearing from this court setting the case down for the week of July 17, 1989.

Sixth, the appellant failed to respond to a further notice of hearing from this Court setting his appeal down for the week of September 5, 1989.

There are two other bases which, in my view, support the order dismissing this appeal for want of prosecution and they are tied together.

Firstly, the appellant is a lawyer and, being knowledgeable in the law, should be aware of both his obligations and his responsibilities as a litigant, and the risk he runs in commencing an action and not pursuing it.

I couple that with the form of his notice of appeal dated October 31, 1988 wherein he purports to appeal for the six taxation years referred to above. I would not criticize this document if it were filed by a layman but I think the Court has a right to expect a better quality statement of claim from a lawyer.

Indeed, if the Minister had not filed a reply to the notice of appeal, and if the appellant were to appear before this Court seeking judgment in terms of his notice of appeal because of the Minister's failure to defend, there is no way this Court could give any sensible judgment in the appellant's favour because his so-called notice of appeal is lacking, I might say almost totally lacking, in the particulars that one might expect of any pleading.

When a person files a pleading, he should state particulars as to the cause of action and the relief he seeks. This notice of appeal, to say the least, is deficient in particulars.

For all those reasons, an order is granted dismissing these appeals for want of prosecution.

Dealing with the first part of this application under section 179.1, I have concluded that there are no reasonable grounds for the appeals in respect of the taxation years 1980, 1982, 1983, 1984, 1985, and 1986; and that one of the main purposes of the appellant in instituting appeals for those six taxation years was to defer the payment of an amount payable under the Act.

In reaching this conclusion, I am persuaded firstly by the facts summarized by counsel for the respondent. That is, primarily, the fact that the appellant's appeals for 1979 and 1981 were, just a year ago, dismissed by a judgment of this Court for want of prosecution. That action shows that the appellant was not serious in pursuing those appeals.

Secondly, the appellant failed to file his income tax returns on time for the years 1982, 1983, 1984 and 1985 and, indeed, he filed returns for those years only after requests and demands from Revenue Canada, Taxation.

Thirdly, the appellant filed his income tax returns for 1983 and 1985 in cities that have no apparent connection with his place of residence and business. The appellant resides and carries on the practice of law in the City of Vancouver or in the immediate surrounding communities and he filed his income tax returns for all years on what are conventionally called British Columbia returns which are printed by Revenue Canada, Taxation for the various provinces showing the provincial income tax rate peculiar to a particular province and also the tax credits available in a particular province.

The appellant always filed British Columbia returns but in 1983 he filed in Ottawa and in 1985 he filed in Newfoundland. Evidence given by the witness, Salmen, at the hearing indicates that any taxpayer would have to specifically request information from a local office of Revenue Canada, Taxation to get the address for filing in Ottawa or Newfoundland. Given the background and all the surrounding circumstances, I infer from the filing in Ottawa and Newfoundland that this taxpayer has made an irresponsible attempt to confuse and delay the record keeping of Revenue Canada by filing in that manner.

Fourthly, he was assessed exactly as he filed and yet he then turned around and served notices of objection and commenced appeals in this Court without offering particulars as to how his returns as filed should be changed, even if the Court were of the mind to order changes on the strength of his pleadings.

And fifthly, (a) his failure to communicate with Revenue Canada, Taxation after filing his notices of objection when he was given a chance at the informal departmental level to support his objections, and (b) his failure to show any particulars in his objections or notices of appeal as to the type of relief he seeks with the specific amounts that should be omitted from his income indicate to me that the appellant is filing frivolous appeals. Within the words of section 179.1 of the Act, he has filed appeals for which there were no reasonable grounds for the appeals and one of the main purposes of instituting or maintaining the appeals was to defer the payment of the amount payable under Part 1 of the Income Tax Act.

For those reasons an order will go as requested by counsel for the respondent under the provisions of section 179.1 of the Act.

Minister's application granted.