BETWEEN:
and
Heard at Winnipeg, Manitoba, on February 27, 2007.
Judgment delivered from the Bench at Winnipeg, Manitoba, on February 27, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
Docket: A-87-06
Citation: 2007 FCA 86
CORAM: LÉTOURNEAU J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
JOSE DAKILA C. TOMAS
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Winnipeg, Manitoba, on February 27, 2007)
[1] The appellant attacks a decision of judge Bell (motions judge) of the Tax Court of Canada rendered on January 11, 2006. Sitting as a motions judge, judge Bell dismissed the appellant’s motion to set aside a judgment of judge Bowie rendered on August 27, 2004. Judge Bowie granted the respondent’s motion to dismiss the appellant’s appeal from his tax assessments on the ground that the appellant did not appear at the hearing.
[2] The appellant submits that the motions judge erred in refusing to set aside judge Bowie’s decision. The respondent concedes that the motions judge erred in concluding that he had no discretion to extend the time-limit set out in Rule 140 of the Tax Court of Canada Rules (General Procedure). However, she submits that the motions judge, nonetheless, came to the correct result because the facts and circumstances of the case militate against granting an extension of time.
[3] A summary of the relevant facts is necessary for a proper understanding of the events that culminated in the dismissal of the appellant’s appeal.
[4] The appellant appealed from tax assessments for the years 1996, 1997 and 1998. Initially, he filed his appeal under the informal procedure. By order of judge Hershfield, he was ordered to file an Amended Notice of Appeal under the general procedure as his appeal exceeds the monetary limits for the informal procedure: see respondent’s Book of Authorities, Tab 1. Judge Hershfield set the time limit for examinations for discovery as 60 days after the close of pleadings, and the time limit for the completion of undertakings given at discovery as 90 days after the close of pleadings.
[5] The appellant filed his Amended Notice of Appeal on February 14, 2003: see Appeal Book, pages 17-19. The respondent filed a reply on May 9, 2006: ibidem, pages 22-32. The appellant did not respect the timelines set for examinations for discovery and the completion of undertakings. The respondent therefore made a motion to dismiss for delay. Judge Hershfield dismissed the motion: see respondent’s Book of Authorities, Tab 2. However, he ordered the appellant to pay costs to the respondent, set new time limits for the examinations and undertakings (March 15, 2004 and April 14, 2004, respectively), and set down the appeal for hearing on June 8, 2004: see respondent’s Book of Authorities, Tab 3.
[6] As of May 28, 2004, two of the appellant’s undertakings were still outstanding: see Appeal Book, page 38. These undertakings were to obtain certain bank statements. The appellant had been unsuccessful in obtaining them, but said he had consented to the respondent attempting to obtain the statements from the banks in question: see appellant’s Memorandum of Fact and Law, page 1. On July 13, 2004, counsel for the respondent sent a letter to appellant’s counsel, asking for an explanation for the delay: see Appeal Book, page 85. Counsel for the appellant stated before the motions judge that he was on vacation when the July 13 letter was sent, and submitted that the letter was never received at his office. The respondent received no response and filed a motion to dismiss for delay. According to the respondent, appellant’s counsel was served with the motion materials by facsimile: see affidavit of Zorn, Appeal Book, page 50. The appellant’s counsel claims to have never received these materials and to have never received notice of the motion: see affidavit of the appellant, Appeal Book, page 41.
[7] When the motion to dismiss came before judge Bowie, no one appeared on behalf of the appellant. The respondent made an oral motion to dismiss the appeal for non-appearance. After waiting quite some time for the appellant or his counsel to appear, judge Bowie granted the motion.
[8] On August 30, 2004, Ms. Sylvie Gallo-Daccash of the Tax Court of Canada mailed a copy of judge Bowie’s judgment to appellant’s counsel: see affidavit of Zorn, Appeal Book, page 50. Appellant’s counsel claims never to have been made aware of the judgment: see Transcript of Motion Proceedings, pages 93 and 105. On November 14, 2005, the appellant filed a motion to set aside judge Bowie’s judgment: see Appeal Book, pages 33-36.
[9] The appellant’s motion to set aside judge Bowie’s decision was made fourteen (14) months after it was rendered while Rule 140(2) of the Federal Courts Rules requires that the motion be made within thirty (30) days after the pronouncement of the judgment. Yet, no application for an extension of time was made by counsel for the applicant as permitted by Rule 12.
[10] While it is true that the motions judge was mistaken when he stated that he had no discretion to grant the appellant’s motion as it was made more than thirty (30) days after the pronouncement of the judgment, the fact remains that no application was made to the Tax Court of Canada for an extension of time.
[11] The appellant’s Memorandum of Fact and Law in this appeal does not address that issue either. It contains no discussion of the factors usually considered on such applications, i.e. a continuing intention to pursue the appeal, that the appeal has some merit, that no prejudice to the respondent arises from the delay and that a reasonable explanation is given for the delay: see Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399; Rosen v. Canada, [2000] F.C.J. No. 415 (Q.L.); Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 41, at paragraph 32.
[12] Counsel for the respondent invited us to exercise the discretion that should have been exercised by the motions judge, judge Bell of the Tax Court of Canada. She submitted that there is no evidence on the record that the appeal has merit. In addition, she argued that the delay in setting aside the decision of judge Bowie is simply not reasonable and justifiable.
[13] Counsel for the appellant initially requested that we set aside judge Bowie’s decision. That decision is not before us. He then asked that his appeal be allowed and the matter be remitted to the motions judge for a decision on a possible extension of time.
[14] For the sake of judicial economy and in order to save time, we are of the view that we should dispose of this issue.
[15] The appellant has provided no evidence that there is merit to his appeal. He is claiming an allowable investment business loss incurred in 1995 while the taxation years in dispute are 1996 to 1998. He did not claim that loss in his income tax returns for the 1996, 1997 and 1998 taxation years. The claim appeared for the first time during the minister’s reconsideration of the appellant’s Notice of Objection to a reassessment for the 1998 taxation year.
[16] Furthermore, we agree with counsel for the respondent that the appellant’s explanation for the delay in applying to set aside judge Bowie’s decision is unreasonable. His only justification is his counsel’s unsworn claim that he did not receive either the notice of motion, with supporting materials, served by fax by the respondent, or the judgment sent to him by mail by the Tax Court of Canada.
[17] In addition, according to the record, the appellant has not shown great enthusiasm in pursuing his appeal. He has been loath to comply with the deadlines imposed for the completion of various procedural steps. From May 28, 2004 to October 12, 2005, he or his counsel never communicated with the respondent’s office in respect of the appeal although, as found by judge Bowie, two undertakings had still not been fulfilled.
[18] For these reasons, we are of the view that an extension of time is neither justified nor warranted in the circumstances. The appeal will be dismissed with costs and the extension of time denied.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-87-06
STYLE OF CAUSE: JOSE DAKILA C. TOMAS v. HER MAJESTY
THE QUEEN
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: February 27, 2007
REASONS FOR JUDGMENT LÉTOURNEAU J.A.
PELLETIER J.A.
DELIVERED FROM THE
APPEARANCES:
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FOR THE APPELLANT
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Winnipeg, Manitoba
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FOR THE APPELLANT
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Deputy Attorney General of Canada |
FOR THE RESPONDENT
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