[1 ]The applicant, Rita Madère, is seeking an order to set aside a judgment by this Court dismissing the applicant’s appeal of an appraisal made under section 160 of the Income Tax Act (ITA), thereby:

a)allowing this motion;
b)setting aside a decision by this Court on December 16, 2011, which dismisses the appeal by reason of delay due the applicant’s failure to appear;
c)and restoring the appeal;

[2 ]The applicant is also asking me to amend the order issued by Paris J. on March 11, 2011, to extend the date to give notice of the undertakings to the respondent.

[3 ]Though the applicant has already objected to the income tax appeal, namely appeal 2010-122(IT)G, and the GST appeal, 2010-1737(GST)I, being heard on common evidence, she now asks that the appeals be joined and heard on common evidence.

The facts are as follows

[4 ]The applicant received notices of assessment pursuant to section 160 of the ITA and section 325 of the Excise Tax Act (ETA). The applicant duly objected to it.

[5 ]After receiving the notices of objection, the Canada Revenue Agency (CRA) issued more notices of reassessment on September 15, 2009. In light of these notices of reassessment, the fair market value of the property went from $445,000 to $390,000.

[6 ]The applicant filed two notices of appeal, namely a notice of appeal pursuant to the General Procedure with respect to the income tax and a notice of appeal under the informal procedure with respect to GST. Some technical difficulties related to filing these appeals were experienced; however, since these difficulties are not relevant to this motion, I did not deem it necessary to dwell on them at length.

[7 ]The respondent duly filed responses to the notices of appeal in the files related to income tax and GST.

[8 ]Pursuant to the order issued by Paris J. on March 11, 2011, the applicant had to provide the respondent with responses to the undertakings on September 2, 2011, at the latest, which she did not do.

[9 ]On September 29, 2011, in a letter, the respondent asked this Court to schedule an appeal hearing. She mentioned that the applicant had failed to comply with her obligation to respond to the undertakings.

[10 ]After receiving this letter from the respondent, this Court issued an order on September 30, 2011, to have the applicant explain why the appeal should not be dismissed for delay and, toward this end, a hearing was scheduled for December 13, 2011.

[11 ]Due to an administrative oversight, the manager of the law firm representing the applicant wrote that the hearing date was December 23, 2011, instead of December 13, 2011, in its hearing agenda management system. As a result, on December 13, 2011, counsel for the applicant failed to appear. After 30 minutes had elapsed, the respondent moved to dismiss the appeal, and the Court allowed this motion. The judgment to that effect was signed by Bédard J. on December 16, 2011.

[12 ]On December 13, 2011, at 2:40 p.m., the respondent received an email from counsel for the applicant concerning some irritants. The email also referred to the hearing on December 23, 2011.

[13 ]That same afternoon, on December 13, 2011, namely at 4:01 p.m., the respondent informed counsel for the applicant by email that a judgment dismissing the appeal had been made instanter. The respondent also asked counsel for the applicant what her client’s intentions were following the default judgment.

[14 ]Following this email by the respondent, the applicant’s counsel sent an email response on December 13, 2011, at 7:29 p.m., which I will now quote: [translation]

[...] It goes without saying that I must correct the situation and ask the Court to set aside this morning’s summary dismissal.

He also added:

The question is now as follows: Can we address these defects through a consent motion or are you opting to contest?

[15 ]On December 15, 2011, the respondent sent emails and faxes to make it known that she would not take a position as long as she did not have the opportunity to read the sworn affidavit supporting the motion to set aside Bédard J.’s judgment.

[16 ]I have noted that on these dates, Bédard J.’s judgment dismissing the applicant’s appeal had not yet been signed. The judgment dismissing the appeal was signed on December 16, 2011, by Bédard J.

[17 ]Counsel for the applicant sent another email to the respondent on February 3, 2012, setting out the following: [translation]

Ms. Wallace,

I am contacting you once again about this case.

My client conducted a significant amount of research and made a considerable effort over the past months to get a hold of the documents—that she knew existed—concerning the appraisal of her house at the time of the transfer in 2004. She has been able to contact the bank’s appraiser, who refinanced the residence shortly before the transfer, and we now have the corresponding appraisal of the property.

In fact, this amount was already in the bank’s documents that you were provided with in 2007 and that you produced under tab 13 of your book of documents, more specifically on pages 30 and 33, under the heading “VALUATION .” They are not open to dispute, notwithstanding your tab 16.

My client was also able to locate and recently get back in touch with Mr. Romain, who confirmed his appraisal. This is how--using the original as a starting point--the value provided by the creditor was located in your documents.

Given the mortgage value of $259,552 mentioned on page 35, tab 13 of your documents, the value transferred by Richard Madère was at most half of $94,448, namely $46,224 instead of $65,223.81 as indicated at tab 15, page 42.

Ms. Madère’s position is that she will not pursue her appeal to the extent that the CRA will reassess it based on this property value of $325,000 in September 2003 by the appraiser, Mr. Romain, which you will find on pages 30 and 33 of your disclosed documents.

I have noted that the amount proposed by my client is higher than the total amount of taxes claimed by the CRA pursuant to sections 160 and 325, as can be seen at tabs 1 and 2, pages 2 and 4 of your documents.

It therefore seems to be a reasonable solution for both parties, which would avoid reopening of the case.

I thank you for agreeing to reconsider Ms. Madère’s position with your customer agency.

Respectfully,

(s) Claude-Alain Burdet

Claude-Alain Burdet

Counsel for the applicant