Date: 20020315
Docket: 2000-3643-IT-G,
2001-582-IT-G
BETWEEN:
JAMES E. ADAMSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasonsfor Orders
Mogan J.
[1] The Appellant has commenced two separate appeals in this Court. His appeal for the 1998 taxation year is Court File 2000-3643(IT)G and his appeal for the 1999 taxation year is Court File 2001-582(IT)G. Before filing a Reply to either Notice of Appeal, the Respondent brought motions to strike out certain parts of each Notice of Appeal. The Notices of Appeal are drafted in a similar style. Accordingly, the Respondent's motions are based on similar arguments.
[2] After the Respondent filed its first Notice of Motion (for 1998 on Court File 2000-3643) supported by the affidavit of one William J. Barnard, the Appellant cross-examined Mr. Barnard on his affidavit. Following the cross-examination, the Appellant brought a motion to compel Mr. Barnard to re-attend to answer certain questions which were objected to, refused or not prepared with adequate information. The Respondent's two motions and the Appellant's motion were all set down for hearing at Toronto on April 18, 2001. I propose to consider first the Respondent's motions because, depending upon the results, certain of the questions cited in the Appellant's motion may or may not be relevant.
[3] In the Respondent's motion for the 1998 taxation year (Court file 2000-3643), the Respondent seeks the following relief:
THE MOTION IS FOR orders:
1. striking out paragraphs 3, 6 and 7, and subparagraph 10(i)(a) of the Notice of Appeal pursuant to section 53 of the Tax Court of Canada Rules (General Procedure) (the "Rules");
2. striking out paragraph 8 and subparagraph 10(ii) of the Notice of Appeal pursuant to paragraph 58(3)(a) of the Rules;
3. granting the Respondent, pursuant to subsection 12(1) of the Rules, an extension of time in which to file and serve Her Reply to the Notice of Appeal;
4. awarding costs of this motion to the Respondent pursuant to section 147 of the Rules; and
5. for such further relief as counsel may advise and this Honourable Court deems just.
In order to consider the merits of the Respondent's motion, I will set out the entire Notice of Appeal for 1998 so that those portions which the Respondent wants to strike out may be read in context:
NOTICE OF APPEAL (1998)
a. Appellant's Address & Province in Which Appeal Instituted
1. The Appellant's home address is as follows:
James E. Adamson
Suite C-3 296 Mill Road
Toronto, ON M9C 4X8
The Province in which the Appeal is instituted is Ontario.
b. The Assessment under Appeal
2. The notice of assessment has no assessment number but bears the Appellant's Social Insurance No. 321-662-396, is dated Sept. 14, 1999, and is for taxation year 1998.
c. The Material Facts
3. The Appellant lost $230,000 in professional receivables in 1995-96 from the practice of law and was assessed income on the basis of the billings as though he had received the revenues and resulting income. His objection claiming deductions of reserves for doubtful and bad debts was denied on the basis that the losses had occurred in the "stub" year when professionals were required to start filing on a calendar year basis and the losses had to be spread over the following 10 years: The full taxes were payable but only 1/10 of the losses could be deducted.
4. The Appellant's 1998 return erroneously included $50,000 in 1995-96 tax paid receipts finally collected in 1998 from the $230,000 bad receivables.
5. Moreover, the Appellant's subsequently filed GST return revealed that his 1998 income was overstated by $10,000. The Respondent has the particulars.
6. Due to the said loss of receivables the Appellant was not generating receivables to pay his share of office overhead at his prior law firm. Accordingly he assigned to the firm his entire professional revenues until his arrears of his share of office overhead became current and lived off of his RSP savings and thereby lost nearly half his life savings. He had no income from his practice for approximately 9 months during 1996 and 1997 while all of his revenues were so required to be paid to his prior law firm and he started over to rebuild his receivables from nothing.
7. Being assessed on artificial income - as though the bad receivables had actually been paid back in 1995 and 1996 - and the Appellants income level since then which now has levelled off for the remaining 5 years of his working life, mean he has been permanently pushed back approximately one year in his ability to pay his income tax. It is the accumulating tax arrears interest and instalment interest due to the said 1995 assessment in the taxation years since 1995 which have put the Appellant permanently behind.
8. Pursuant to s. 220(3.1) of the Income Tax Act, the Appellant seeks a waiver of all arrears and instalment interest and penalties paid resulting from the 1995 assessment of receivables which were not received within 6 months of being billed, and a waiver of all such further interest charges on income tax in subsequent taxation years due to his 1995 assessment.
9. By notice of assessment bearing Appellant's Social Insurance No. 321-662-396, dated Sept. 14, 1999 for taxation year 1998, the Minister erroneously assessed the Appellant for $50,000 tax paid receipts collected in that year from bad receivables from 1995-96; for more than $10,000 of 1998 income that was erroneously overstated; and assessed $30,000 to $35,000 in interest arrears and penalties, the calculations of which are known only to the Respondent.
d. Issues to be Decided
10. The issues are:
(i) whether the Appellant has been wrongly assessed on;
(a) 1995 or 1996 income on which income tax has been assessed and paid, and
(b) overstated income for 1998 as revealed in his GST filing, and
(ii) whether pursuant to s. 220(3.1) of the Income Tax Act, the Appellant should be entitled to a waiver of part or all arrears and instalment interest and penalties paid and accruing since 1995 resulting from the 1995 assessment of receivables which were not in fact paid in 1995 or 1996 but nonetheless were included in his income for tax purposes.
e. Statutory Provisions
11. The Appellant relies on Income Tax Act of Canada Sections 12(1)(a)(b)(d)(l)(m) & (p); 20(1)(b) & (p); 34; 34.1; 220(3.1); 249 and such further provisions as he or counsel may advise.
f. Reasons
The Appellant's reasons as are set out above in the Material Facts.
g. Relief Sought
12. The Appellant seeks affirmative answers to the above Issues to be Decided and an order referring the assessment back to the Minister for reconsideration and reassessment in accordance with the Court's reasons.
[4] The Respondent relies on section 53 of the Tax Court of Canada Rules (General Procedure) hereinafter called the "G.P. Rules" in the motion to strike out paragraphs 3, 6 and 7 and subparagraph 10(i)(a) of the Notice of Appeal. Section 53 provides:
53 The Court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
(a) may prejudice or delay the fair hearing of the action,
(b) is scandalous, frivolous or vexatious, or
(c) is an abuse of the process of the Court.
I will consider the application of section 53 of the G.P. Rules to each of the impugned paragraphs. According to paragraph 2 of the Notice of Appeal, the only taxation year under appeal is 1998. Therefore, the Appellant may challenge the Minister's assessment of tax or interest or penalty with respect to his 1998 taxation year.
[5] Paragraph 3 of the Notice of Appeal alleges a substantial loss in 1995-1996 in professional receivables. At first blush, a loss in receivables in 1995-1996 is not relevant when challenging an assessment for 1998. It is possible, however, that the Appellant had a business loss in either or both of those years and received a "nil assessment" which was not appealable. It is also possible that the Appellant's 1998 taxation year is the first year when he could carry forward a business loss from 1995 or 1996. Paragraph 3 refers to recent legislation which requires professionals to compute income on the basis of a calendar year with a 10-year deferral provision. Here again, the deferral from 1995 or 1996 may have a bearing on the Appellant's 1998 income or taxable income.
[6] Although this appeal for 1998 is under the Court's General Procedure, the Appellant appears to have drafted his own pleading and, upon the hearing of this motion, he appeared on his own behalf without the benefit of legal counsel. The Appellant is a practising lawyer in Toronto but I assume from the content of his Notice of Appeal that he does not practise in the area of tax litigation. Accordingly, I regard the Appellant as an ordinary non-lawyer taxpayer attempting to plead his own case in Court. His Notice of Appeal for 1998 is a rambling and imprecise document. It fails to articulate any reasonable allegation with respect to the computation of income or taxable income for 1998. I have had to assume, for the Appellant's benefit, that there is or may be an issue concerning the carry forward of a loss from 1995 or 1996 (making relevant the computation of such loss) or concerning the deferral of professional income as a consequence of recent legislation.
[7] In my opinion, section 53 of the G.P. Rules cannot be invoked to strike out paragraph 3 of the Notice of Appeal. I have already observed that the Notice of Appeal is rambling and imprecise but it is the work of an ordinary taxpayer attempting to plead his own case. I cannot find anything in paragraph 3 which I would regard as "scandalous, frivolous or vexatious" or an abuse of the Court process. Similarly, I find nothing in paragraph 3 that may prejudice or delay the fair hearing of the appeal for 1998. It seems to me that the Respondent may have been better advised to demand particulars under section 53 of the G.P. Rules rather than attempt to strike out paragraph 3 under section 53.
[8] Everything stated above concerning section 53 of the G.P. Rules and paragraph 3 of the Notice of Appeal has equal application to paragraphs 6 and 7 of the Notice of Appeal. I will not invoke section 53 to strike out paragraph 3 or 6 or 7 of the Notice of Appeal.
[9] Subparagraph 10(i)(a) of the Notice of Appeal is in a different category. In paragraph 10, the Appellant is attempting to state the issues to be decided. Those issues must relate to the Appellant's most recent assessment for 1998 because that is the only assessment under appeal. In subparagraph 10(i)(a), the Appellant attempts to bring before the Court the question of whether he has been wrongly assessed on "1995 or 1996 income". This is an overt attempt to dispute assessments for taxation years (1995 or 1996) which are not under appeal. I have no hesitation in applying paragraph 53(a) of the G.P. Rules to subparagraph 10(i)(a) of the Notice of Appeal. I find that the inclusion of subparagraph 10(i)(a) within the Notice of Appeal would prejudice or delay the fair hearing of the appeal with respect to the Appellant's 1998 taxation year. Accordingly, I will order that subparagraph 10(i)(a) be struck out.
[10] I now turn to the second part of the Respondent' motion that paragraph 8 and subparagraph 10(ii) of the Notice of Appeal be struck out pursuant to paragraph 58(3)(a) of the G.P. Rules which provides:
58(3) The respondent may apply to the Court to have an appeal dismissed on the ground that,
(a) the Court has no jurisdiction over the subject matter of an appeal,
(b) ...
and the Court may grant judgment accordingly.
[11] Paragraph 8 and subparagraph 10(ii) of the Notice of Appeal have a common theme. They both refer to subsection 220(3.1) of the Income Tax Act concerning a waiver of interest and penalties "resulting from the 1995 assessment". Subparagraph 10(ii) raises the question whether "pursuant to subsection 220(3.1) of the Income Tax Act, the Appellant should be entitled to a waiver ...". That particular subsection grants a discretion to the Minister as follows:
220(3.1) The Minister may at any time waive or cancel all or any portion of any penalty or interest otherwise payable under this Act by a taxpayer or partnership and, notwithstanding subsections 152(4) to (5), such assessment of the interest and penalties payable by the taxpayer or partnership shall be made as is necessary to take into account the cancellation of the penalty or interest.
Under subsection 220(3.1), the Minister has discretion to waive any penalty or interest. I have two reasons for granting the Respondent's motion and striking out paragraph 8 and subparagraph 10(ii) of the Notice of Appeal.
[12] The first reason for striking out is the Appellant's overt attempt to dispute and litigate his 1995 assessment of income tax when the only taxation year under appeal is 1998. Both of the impugned paragraphs refer to interest and penalties "resulting from the 1995 assessment". If the Appellant received a notice of assessment for his 1995 taxation year levying interest or penalties or both, he could have and, perhaps, should have appealed from that assessment. He cannot use his valid appeal for the 1998 taxation year to go back and challenge one or more assessment for the 1995 taxation year. Paragraph 8 and subparagraph 10(ii) have no place in an appeal for the 1998 taxation year. Although this Court has jurisdiction to hear a valid appeal from any assessment of income tax, the Appellant does not have a valid appeal for his 1995 taxation year.
[13] The second reason for striking out is based upon the discretion granted to the Minister under subsection 220(3.1). In Floyd Estate v. M.N.R., 93 DTC 5499, Dubé J. of the Federal Court Trial Division stated at page 5500:
The new subsection 220(3.1) is applicable with respect to penalties and interest from the 1985 taxation year but no decision has yet been released on its interpretation.
At the outset, I should point out that it is not for the Court to decide whether the interest otherwise payable by the taxpayer ought to be waived or cancelled. It is within the discretion of the Minister. The function of the Court in this judicial review, as I understand it, is to determine whether or not the Minister failed to observe procedural fairness or erred in law in making his decision, as outlined under subsection 18.1(4) of the Federal Court Act.
In Kaiser v. M.N.R., 95 DTC 5187, Rouleau J. set out subsection 220(3.1) and then stated at page 5188:
The purpose of this legislative provision is to allow Revenue Canada, Taxation, to administer the tax system more fairly, by allowing for the application of common sense in dealing with taxpayers who, because of personal misfortune or circumstances beyond their control, are unable to meet deadlines or comply with rules under the tax system. The language used in the section bestows a wide discretion on the Minister to waive or cancel interest at any time. To assist in the exercise of that discretion, policy guidelines have been formulated and are set out in Information Circular 92-2.
The jurisprudence has established the standard to be employed by the Courts when called upon to review the exercise of a discretionary power such as the one in question here. In Re Maple Lodge Farms Ltd. and Government of Canada et al. (1982), 137 D.L.R. (3d) 558 (S.C.C.), McIntyre, J. stated at p. 562:
In construing statutes such as those under consideration in this appeal, which provide for far-reaching and frequently complicated administrative schemes, the judicial approach should be to endeavour within the scope of the legislation to give effect to its provisions so that the administrative agencies created may function effectively, as the legislation intended. In my view, in dealing with legislation of this nature, the courts should, wherever possible, avoid a narrow, technical construction, and endeavour to make effective the legislative intent as applied to the administrative scheme involved. It is, as well, a clearly-established rule that courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
[14] The Appellant seems to think that this Court can compel the Minister to exercise his/her discretion under subsection 220(3.1) in a particular way. This Court has no jurisdiction over the Minister in the proposed exercise of discretion under subsection 220(3.1). If the Appellant were to request a waiver of interest or penalties under subsection 220(3.1), and if the Minister were to refuse the request, the Appellant could commence a proceeding in the Federal Court to review the Minister's exercise of discretion with respect to procedural fairness or error of law but that proceeding would start after the Minister had actually exercised his/her discretion under subsection 220(3.1).
[15] In his claim with respect to subsection 220(3.1), the Appellant is premature because he has not yet asked for relief from interest or penalties; and he is in the wrong Court. I will grant the Respondent's motion and strike out paragraph 8 and subparagraph 10(ii) of the Notice of Appeal because this Court does not have jurisdiction to compel the Minister to exercise his/her discretion under subsection 220(3.1) in a particular way; nor does this Court have jurisdiction to review the manner in which the discretion was exercised.
[16] The Respondent's second motion seeks the following relief with respect to the Appellant's Notice of Appeal for the 1999 taxation year:
THIS MOTION IS FOR orders:
1. striking out paragraphs 5, 6, 7, 8 and 10 of the Notice of Appeal pursuant to section 53 of the Tax Court of Canada Rules (General Procedure) (the "Rules");
2. striking out paragraphs 4, 9 and subparagraph 11(ii) of the Notice of Appeal pursuant to paragraph 48(3)(a) of the Rules;
3. granting the Respondent, pursuant to subsection 12(1) of the Rules, an extension of time in which to file and serve Her Reply to the Notice of Appeal;
4. awarding costs of this motion to the Respondent pursuant to section 147 of the Rules; and
5. for such further relief as counsel may advise and this Honourable Court deems just.
I will set out the entire Notice of Appeal for 1999 so that those portions which the Respondent wants to strike out may be read in context:
NOTICE OF APPEAL (1999)
a. Appellant's Address & Province in Which Appeal Instituted
1. The Appellant's home address is as follows:
James E. Adamson
Suite C-3 296 Mill Road
Toronto, ON M9C 4X8
The Province in which the Appeal is instituted is Ontario.
b. The Assessment under Appeal
2. The notice of assessment states the Appellant's Social Insurance No. 321-662-396, is dated July 11, 2000, and is for taxation year 1999.
c. The Material Facts
3. On June 14, 2000, the Appellant duly filed his 1999 Income Tax Return by mail prior to his June 15, 2000 filing date prescribed in S. 150(1)(d) of the Income Tax Act. The Minister has wrongly assessed the Appellant for $3,907.34 for late filing penalties.
4. The Appellant should be allowed a credit against taxes assessed of $90,000 or more (the exact calculation of which is available to the Minister on information only partially made available to the Appellant) pursuant to S. 220(3.1) of the Income Tax Act, under which the Appellant should be entitled to a waiver of part or all arrears and instalment interest and penalties, of or exceeding $90,000, paid and accruing since 1995 which result from the Minister's 1995 assessment of the taxpayer, including in his income receivables which were not in fact received by the Appellant in 1995 or 1996, but nonetheless were included in his income for tax purposes.
5. The Appellant lost $230,000 in professional receivables in 1995-96 from the practice of law and was assessed income on the basis of the billings as though he had received the revenues and resulting income. His objection claiming deductions of reserves for doubtful and bad debts was denied on the basis that the losses had occurred in the "stub" year when professionals were required to start filing on a calendar year basis and the losses had to be spread over the following 10 years: The full taxes were payable but only 1/10 of the losses could be deducted.
6. The Appellant was compelled to financially start over and rebuild his practice from nothing; starting with no revenues or income. Due to the said loss of receivables the Appellant was not generating receivables to pay his share of office overhead at his prior law firm. Accordingly he assigned to the firm his entire professional revenues until his arrears of his share of office overhead became current and lived off of his RSP savings and thereby lost nearly half his life savings during the years it took to rebuild his practice month by month. He had no income from his practice for approximately 9 months during 1996 and 1997 while all of his revenues were so required to be paid to his prior law firm and he thereafter started over to rebuild his receivables from nothing month by month.
7. Being assessed on artificial income - as though the bad receivables had actually been paid back in 1995 and 1996 - and the Appellant's income level since then which now has levelled off for the remaining 5 years of his working life, means he has been permanently pushed back approximately one and one-half years in his ability to pay his income tax. It is the accumulating tax interest arrears, instalment interest and penalties due to the said 1995 assessment in the taxation years since 1995 which have put the Appellant permanently behind.
8. Each year all the Appellant's payments on account of tax are needed to pay off taxes from prior years. Compounding interest is making the tax debt grow and the taxpayer is falling further behind. He has no reasonable hope of generating enough professional income in his remaining 5 years before retirement to ever pay off the arrears.
9. Pursuant to S. 220(3.1) of the Income Tax Act, the Appellant seeks a waiver of all arrears and instalment interest and penalties paid resulting from the 1995 assessment of receivables which were not received within 6 months of being billed, and a waiver of all such further interest charges on income tax in subsequent taxation years due to his 1995 assessment.
10. By notice of assessment bearing Appellant's Social Insurance No. 321-662-396, dated July 11, 2000 for taxation year 1999, the Minister erroneously assessed the Appellant for $38,162 federal and $20,007 Ontario tax without allowing any deductions or credits for arrears and instalment interest and penalties resulting from the 1995 assessment of receivables which were never in fact received in 1995 or 1996 but nonetheless were included in his income for tax purposes, and wrongfully assessed for the said $3,907.34 late filing penalties, and $4,200 more arrears and instalment interest. The Appellant duly objected and by notification dated November 17, 2000 the Minister confirmed the erroneous assessment and additional penalty.
d. Issues to be Decided
11. The issues are:
(I) whether, the Appellant duly filed his 1999 Income Tax Return by mail on June 14, prior to his June 15, 2000 filing date prescribed in S. 150(1)(d) of the Income Tax Act so that the Minister's assessment of $3,907.34 late filing penalties is erroneous.
(ii) whether pursuant to S. 220(3.1) of the Income Tax Act, the Appellant should be entitled to a waiver of part or all arrears and instalment interest and penalties paid and accruing since 1995 resulting from the 1995 assessment of receivables which were not in fact paid in 1995 or 1996 but nonetheless were included in his income for tax purposes.
e. Statutory Provisions
12. The Appellant relies on Income Tax Act of Canada Sections 12(1)(a)(b)(d)(l)(m) & (p); 20(1)(b) & (p); 34; 34.1; 150(1)(d), 162(1), 220(3.1); 249 and such further provisions as he or counsel may advise.
f. Reasons
13. The Appellant's reasons as are set out above in the Material Facts
g. Relief Sought
14. The Appellant seeks affirmative answers to the above Issues to be Decided and an order referring the assessment back to the Minister for reconsideration and reassessment in accordance the Court's reasons.
[17] Because the Notice of Appeal for 1999 is drafted in the same style as the pleading for 1998, many of my comments above will have a direct application to the Respondent's motion for 1999. I will consider the relief sought by the Respondent in the same order as it is presented in the Notice of Motion.
[18] The Respondent relies of section 53 of the G.P. Rules to strike out paragraphs 5, 6, 7 8 and 10 of the Notice of Appeal for 1999. The following paragraphs from the two Notices of Appeal are virtually identical:
1998 Notice of Appeal 1999 Notice of Appeal
Paragraph 3 same as Paragraph 5
Paragraph 6 same as Paragraph 6
Paragraph 7 same as Paragraph 7
I have already determined above that I will not use section 53 of the G.P. Rules to strike out paragraphs 3, 6 or 7 for 1998. For the same reasons, I will not strike out paragraphs 5, 6 or 7 for 1999.
[19] I will not strike out paragraph 10 because it is one of the few paragraphs which clearly identifies some of the particulars of the 1999 assessment which is under appeal. I observed in paragraph 6 above that the Appellant's Notice of Appeal for 1998 is rambling and imprecise. I make the same observation with respect to his Notice of Appeal for 1999 but that does not mean that paragraph 10 should be struck out just because the Appellant has rambled into the territory of claiming deductions or credits for interest and penalties resulting from an assessment of a prior year.
[20] Paragraph 8 is relatively benign. The Appellant is an ordinary taxpayer attempting to plead his own case. I will therefore allow him some latitude in pleading statements which, at first blush, appear to be not relevant but which may, in some manner, assist his cause. In summary, I will not invoke section 53 of the G.P. Rules to strike out any one of paragraphs 5, 6, 7, 8 or 10.
[21] The Respondent seeks to strike out paragraphs 4, 9 and subparagraph 11(ii) pursuant to paragraph 58(3)(a) of the G.P. Rules. Paragraph 9 and subparagraph 11(ii) in the 1999 Notice of Appeal are identical to paragraph 8 and subparagraph 10(ii), respectively, in the 1998 Notice of Appeal. For the reasons set out in paragraphs 11 to 15 above, I will strike out paragraph 9 and subparagraph 11(ii) in the 1999 Notice of Appeal.
[22] Paragraph 4 in the 1999 Notice of Appeal contains a claim that the Appellant should be allowed a credit "pursuant to S. 220(3.1) of the Income Tax Act, under which the Appellant should be entitled to a waiver". That claim places paragraph 4 on the same footing as paragraph 9 and subparagraph 11(ii) because the Appellant is claiming relief which this Court cannot give. As stated in paragraph 15 above, this Court does not have jurisdiction to compel the Minister to exercise his/her discretion under subsection 220(3.1) in a particular way; nor does this Court have jurisdiction to review the manner in which the discretion was exercised. I will strike out paragraph 4 in the 1999 Notice of Appeal.
The Appellant's Motion
[23] The Respondent filed an affidavit by William J. Barnard in support of each motion to strike out parts of the Notices of Appeal. The Appellant cross-examined Mr. Barnard on his affidavit. After the cross-examination, the Appellant brought a motion to compel Mr. Barnard to re-attend to answer certain questions which were objected to, refused or on which Mr. Barnard had not adequately prepared himself. The Appellant listed approximately 20 questions in his Notice of Motion which required answers or more complete answers; and provided a transcript of the cross-examination.
[24] I have some doubt as to whether the Respondent needed an affidavit in support of its motions but, once the affidavit of Mr. Barnard was filed, the Appellant was certainly entitled to cross-examine on the affidavit. Some of the Appellant's questions are clearly not relevant. For example, the first two questions are concerned with late filing penalties assessed and reversed in 1996 and 1997, long before 1998 which is the first year under appeal. Most of the Appellant's questions are in the nature of a demand for particulars and do not relate to the merits of the Respondent's motions to strike out.
[25] In substance, I regard the Appellant's questions on cross-examination of Mr. Barnard as not relevant to the merits of the Respondent's motions to strike out. Those questions would be better put to some representative of Revenue Canada on an examination for discovery. I will dismiss the Appellant's motion, without costs.
Other Matters
[26] I will grant to the Respondent a period of approximately 60 days to May 15, 2002 to file Replies to the Notices of Appeal.
[27] I strongly recommend that the Appellant consider amending his Notices of Appeal for 1998 and 1999. Subsection 171(1) of the Income Tax Act describes the different ways in which this Court may dispose of an appeal. If a taxpayer like the Appellant commencing an appeal assumes that he will achieve at least some success, his Notice of Appeal should describe in some detail the way in which he wants the Minister to change the assessment under appeal. In my view, the Notices of Appeal for 1998 and 1999 as presently filed lack that detail.
Signed at Ottawa, Canada, this 15th day of March, 2002
"M.A. Mogan"
J.T.C.C.
COURT FILE NO.: 2000-3643(IT)G and 2001-582(IT)G
STYLE OF CAUSE: James E. Adamson and
Her Majesty theQueen
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 18, 2001
REASONS FOR ORDERS BY: The Honourable Judge M.A. Mogan
DATE OF ORDERS: March 15, 2002
APPEARANCES:
For the Appellant: The Appellant himself
Counsel for the Respondent: Eleanor H. Thorn
COUNSEL OF RECORD:
For the Appellant:
Name: N/A
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2000-3643(IT)G
BETWEEN:
JAMES E. ADAMSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motions heard on April 18, 2001, at Toronto, Ontario
the Honourable Judge M.A. Mogan
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Eleanor H. Thorn
ORDER
Upon motion by the Respondent for an Order:
1. striking out paragraphs 3, 6 and 7, and subparagraph 10(i)(a) of the Notice of Appeal pursuant to section 53 of the Tax Court of Canada Rules (General Procedure) (the "Rules");
2. striking out paragraph 8 and subparagraph 10(ii) of the Notice of Appeal pursuant to paragraph 58(3)(a) of the Rules;
3. granting the Respondent, pursuant to subsection 12(1) of the Rules, an extension of time in which to file and serve Her Reply to the Notice of Appeal;
4. awarding costs of this motion to the Respondent pursuant to section 147 of the Rules; and
Court File No. 2000-3643(IT)G
5. for such further relief as counsel may advise and this Honourable Court deems just.
And upon reading the Notice of Appeal and the affidavit of William J. Barnard, filed;
And upon hearing the Appellant and counsel for the Respondent;
It is ordered that:
1. Only subparagraph 10(i)(a) of the Notice of Appeal is struck out pursuant to section 53 of the Rules;
2. Paragraph 8 and subparagraph 10(ii) are struck out pursuant to paragraph 58(3)(a) of the Rules;
3. The time within which the Respondent may file and serve a Reply to the Amended Notice of Appeal is extended to May 15, 2002; and
4. Costs of the Respondent's motion are in the cause.
Upon motion by the Appellant for an Order that William J. Barnard re-attend to answer certain questions with respect to his affidavit which were objected to, refused or not prepared with adequate information;
And upon hearing the Appellant and counsel for the Respondent;
It is ordered that the Appellant's motion is dismissed, without costs.
Signed at Ottawa, Canada, this 15th day of March, 2002.
|
"M.A. Mogan" |
J.T.C.C.
2001-582(IT)G
BETWEEN:
JAMES E. ADAMSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motions heard on April 18, 2001, at Toronto, Ontario
the Honourable Judge M.A. Mogan
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Eleanor H. Thorn
ORDER
Upon motion by the Respondent for an Order:
1. striking out paragraphs 5, 6, 7, 8 and 10 of the Notice of Appeal pursuant to section 53 of the Tax Court of Canada Rules (General Procedure) (the "Rules");
2. striking out paragraphs 4 and 9 and subparagraph 11(ii) of the Notice of Appeal pursuant to paragraph 58(3)(a) of the Rules;
3. granting the Respondent, pursuant to subsection 12(1) of the Rules, an extension of time in which to file and serve Her Reply to the Notice of Appeal;
Court File No. 2001-582(IT)G
4. awarding costs of this motion to the Respondent pursuant to section 147 of the Rules; and
5. for such further relief as counsel may advise and this Honourable Court deems just.
And upon reading the Notice of Appeal and the affidavit of William J. Barnard, filed;
And upon hearing the Appellant and counsel for the Respondent;
It is ordered that:
1. Paragraphs 5, 6, 7, 8 and 10 of the Appellant's Notice of Appeal are not struck out pursuant to section 53 of the Rules;
2. Paragraphs 4 and 9 and subparagraph 11(ii) of the Appellant's Notice of Appeal are struck out pursuant to paragraph 58(3)(a) of the Rules
3. The time within which the Respondent may file and serve a Reply to the Amended Notice of Appeal is extended to May 15, 2002; and
4. Costs of the Respondent's motion are in the cause.
Upon motion by the Appellant for an Order that William J. Barnard re-attend to answer certain questions with respect to this affidavit which were objected to, refused or not prepared with adequate information;
And upon hearing the Appellant and counsel for the Respondent;
It is ordered that the Appellant's motion is dismissed, without costs.
Signed at Ottawa, Canada, this 15th day of March, 2002.
|
"M.A. Mogan" |
J.T.C.C.