Date: 19990504
Docket: A-613-97
Winnipeg, Manitoba, this 4th day of May, 1999.
PRESENT: The Honourable Mr. Justice Strayer
The Honourable Mr. Justice Robertson
The Honourable Mr. Justice Sexton
IN RE THE INCOME TAX ACT
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
- and -
DANNY MOSS
Respondent
JUDGMENT
The appeal is dismissed.
"B.L. Strayer"
J.A.
Date: 19990505
Docket: A-613-97
CORAM: STRAYER J.A.
ROBERTSON J.A.
SEXTON J.A.
IN RE THE INCOME TAX ACT
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
- and -
DANNY MOSS
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Winnipeg, Manitoba, on May 4, 1999)
STRAYER J.A
[1] We are all of the view that the appeal should be dismissed.
[2] The appellant has argued that the learned Tax Court Judge made an error of law in concluding that he had the authority to allow the respondent to proceed with his appeal in that Court without paying his filing fees required by Rule 176 of the Tax Court Rules. We agree with the Tax Court Judge that he had such authority under Rule 9 which provides that:
| 9. The Court may, only where and as necessary in the interests of justice, dispense with compliance with any rule at any time. |
In our view the requirement to pay a filing fee is a procedural matter prescribed by a rule of the Tax Court, and therefore it may be waived pursuant to those rules. Whether other Courts have specific rules for in forma pauperis proceedings does not assist in interpreting the Tax Court Rules which are self-contained. Nor need we go in search of an ancient statutory or common law right to bring such proceedings.
[3] The appellant also argues that the Tax Court Judge erred in fact in finding that the respondent was without means to pay the filing fee. The learned judge, after due consideration of the evidence, accepted the respondent's testimony to this effect and we can see no "palpable or overriding" error of fact that would entitle us to intervene.
[4] We would only add that we assume that in the exercise of his discretion the Tax Court Judge considered, among other factors, whether the appeal by the respondent in the Tax Court has any possible merit. This would of course be a proper matter for consideration in any determination as to whether the rule should be waived. As no objection has been taken to the discretionary decision of the judge on this ground, it is unnecessary for us to consider it further.
[5] The appeal will therefore be dismissed.
"B.L. Strayer"
J.A.
Winnipeg, Manitoba
May 5, 1999
Date: 19990505
Docket: A-613-97
CORAM: STRAYER J.A.
ROBERTSON J.A.
SEXTON J.A.
IN RE THE INCOME TAX ACT
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
- and -
DANNY MOSS
Respondent
Heard at Winnipeg, Manitoba on Tuesday, May 4, 1999
Judgment delivered from the Bench at Winnipeg, Manitoba on Tuesday, May 4, 1999.
REASONS FOR JUDGMENT BY: STRAYER J.A.
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: A-613-97
STYLE OF CAUSE: HER MAJESTY THE QUEEN v. DANNY MOSS
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: May 4, 1999
REASONS FOR JUDGMENT STRAYER J.A.
OF THE COURT: ROBERTSON J.A.
SEXTON J.A.
DELIVERED BY: STRAYER J.A.
DATED: May 5, 1999
APPEARANCES
Mr. Danny Moss on his own behalf
Mr. Lyle Bouvier
Department of Justice
301 - 310 Broadway
Winnipeg, Manitoba
R3C 0S6 for the Appellant
SOLICITORS OF RECORD
Mr. Danny Moss
133 Park Place West
Winnipeg, Manitoba
R3P 2J2 on his own behalf
Morris Rosenberg
Deputy Attorney General of Canada for the Appellant