Date: 20021212
Docket: 2002-1463-IT-G
BETWEEN:
CHASE BRYANT INC.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Order
Bowman, A.C.J.
[1] This matter involves a request by Mr. Robert A. Gunderson to obtain the court's permission to represent the appellant.
[2] Subsection 30(2) of the Tax Court of Canada Rules (General Procedure) provides
A corporation shall be represented by counsel in all proceedings in the Court, unless the Court, in special circumstances, grants leave to the corporation to be represented by an officer of the corporation.
[3] Mr. Gunderson is a 25% shareholder of the appellant and is also a director. He is not an officer and technically this would disqualify him from representing the company. If I were otherwise inclined to grant his request that would not be an insuperable obstacle because I would simply have made the order granting him permission to represent the company conditional upon his becoming an officer. He should have no difficulty since the remaining 75% of the shares are owned by his mother and his brother.
[4] In Pratts Wholesale Limited v. The Queen, 98 DTC 1561, Beaubier J. of this court applied the four factors stated by Muldoon J. in Kobetek Systems Ltd. v. R., [1998] 1 C.T.C. 308 at page 310.
From these cases the following factors appear to be relevant to the determination of whether special circumstances exist: whether the corporation can pay for a lawyer; whether the proposed representative will be required to appear as advocate and as witness; the complexity of the legal issues to be determined (and therefore whether it appears that the representative will be able to handle the legal issues) and whether the action can proceed in an expeditious manner.
[5] These factors were referred to by Bowie J. in RFA Natural Gas Inc. v. R., [2000] G.S.T.C. 40.
[6] The factors referred to in these cases are a useful starting point but they are neither determinative nor exhaustive. For example in RFA Natural Gas Bowie J. did not put much weight on the question whether the proposed representative might appear as a witness. I respectfully agree.
[7] If there is one factor that outweighs the others it is whether the company can afford to pay a lawyer. If it can it is difficult to imagine circumstances which would justify a departure from the rule that a corporation must be represented by counsel. In Mavito Inc. c. R., [2001] 2 C.T.C. 2048, Tardif J. considered a corporate appellant's inability to pay a lawyer's fees as "a decisive factor" in such a motion as this.
[8] In this case the appellant's financial statements for 1997 and 1998 were put in evidence and they show a company in very healthy financial condition. It was admitted by Mr. Gunderson that it is more or less the same situation today. It can well afford a lawyer.
[9] Mr. Gunderson argued that his familiarity with the company's affairs and its voluminous records - it had offices in two cities - means that he will be able to move the case along more expeditiously than if he had to instruct a lawyer in the somewhat complex factual matters involved here. He says that the whole problem stems from a breakdown of communications between the company's accountant and the CCRA. It seems that non-legal representation has not helped the company up to now. Possibly the best way of moving the matter along is to retain the services of a competent tax counsel who can either attempt to settle the case, or, if the matter goes to trial, marshal and present the facts in an orderly way.
[10] There is another factor that militates against my granting the request. Mr. Gunderson lives in the United States where he is the chief executive officer of a company that is based in London, England. It appears he travels extensively in connection with his work. It is inefficient to have the appellant represented by a non-lawyer who is also a non-resident who might be anywhere in the world. There have already been delays in the hearing of this motion because of Mr. Gunderson's unavailability. If the matter is to proceed expeditiously it is far preferable to have a lawyer in Canada upon whom notices can be served and who can prepare a list of documents and ensure that examinations for discovery can be held in a timely fashion.
[11] In short, no evidence of special circumstances has been put forward that would justify the court's exercising its discretion to permit a non-lawyer to represent the company.
[12] The motion is dismissed. Costs will be in the cause.
[13] In the Pratts Wholesale case Beaubier J. gave the appellant 45 days in which to appoint legal counsel who could file an appearance to act as counsel of record. I do not propose to make a similar order, but I think the appellant should move with all possible despatch to appoint counsel who may wish to consider whether any steps are necessary in addition to filing an appearance.
Signed at Ottawa, Canada, this 12th day of December 2002.
|
"D.G.H. Bowman" |
A.C.J.COURT FILE NO.: 2002-1463(IT)G
STYLE OF CAUSE: Between Chase Bryant Inc. and
Her Majesty The Queen
PLACE OF HEARING: Victoria, British Columbia
DATE OF HEARING: December 3, 2002
REASONS FOR ORDER BY: The Honourable D.G.H. Bowman
Associate Chief Judge
DATE OF ORDER: December 12, 2002
APPEARANCES:
Agent for the Appellant: Robert A. Gunderson
Counsel for the Respondent: Eric Douglas, Esq.
COUNSEL OF RECORD:
For the Appellant:
Name: --
Firm: --
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2002-1463(IT)G
BETWEEN:
CHASE BRYANT INC.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Application heard on December 3, 2002, at Victoria, British Columbia, by
The Honourable D.G.H. Bowman, Associate Chief Judge
Appearances
Agent for the Appellant: Robert A. Gunderson
Counsel for the Respondent: Eric Douglas, Esq.
ORDER
Upon application by the Mr. Robert A. Gunderson to represent the appellant in its appeal before the court
And upon hearing what was alleged by the parties
It is ordered that the application be dismissed.
It is further ordered that costs be costs in the cause.
Signed at Ottawa, Canada, this 12th day of December 2002.
|
"D.G.H. Bowman" |
A.C.J.