Date: 19990521
Docket: 96-4799-IT-G
BETWEEN:
ANDRÉ LÉGER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for order
Tardif, J.T.C.C.
[1] Whereas a notice of motion to dismiss the appeal was served on January 12, 1999, at Québec;
[2] Whereas counsel for the appellant failed to appear when the motion to dismiss was heard;
[3] Whereas the Honourable Judge Dussault granted the motion and accordingly dismissed the appeal from the assessments issued under the Income Tax Act for the 1988, 1989, 1990 and 1991 taxation years;
[4] Whereas costs of $400 were awarded to the respondent;
[5] Whereas a motion in revocation of judgment was filed in response to that judgment on February 9, 1999;
[6] Whereas counsel for the appellant submitted that the case had been discussed with counsel for the respondent in the days prior to the hearing of the motion to dismiss;
[7] Whereas counsel had agreed that the motion would be made only for the payment of costs if the appellant paid $4,000 as ordered by the Tax Court of Canada on October 2, 1998, and filed a list of documents prior to the hearing date;
[8] Whereas the costs were in fact paid before the hearing;
[9] Whereas the list of documents was also considered to have been filed before the motion was made, on February 1, 1999, through the following undertaking:
[TRANSLATION]
LIST OF DOCUMENTS
The documents of which the appellant has knowledge at this time that might be used in evidence have been cited in the list of exhibits filed by the respondent.
The appellant does not intend to file a list of documents.
[10] Whereas the appellant’s arguments are confirmed by the content of the affidavit signed by counsel for the respondent who was handling the case at the time, and specifically of paragraphs 4, 5 and 6 of the affidavit, which read as follows:
[TRANSLATION]
4. The motion to dismiss the appeal was filed for two reasons, namely: failure to pay $4,000 as ordered by the Tax Court of Canada on October 2, 1998, and failure to file and serve a list of documents as required in an order by the Tax Court of Canada on November 18, 1997.
5. The $4,000 was not paid until January 29, 1999.
6. On February 1, 1999, during a telephone conversation I had with Marie-France LaHaye, it was agreed that if counsel for the appellant filed and served a list of documents, the respondent would claim only the costs associated with the motion. (Emphasis added.)
[11] Whereas counsel for the appellant also stated that she was not present when the motion was made because of her ignorance of this Court’s rules of practice, as she thought that the motion would be made at 10:00 a.m.;
[12] Whereas counsel are unable to agree to vary an order of the Court;
[13] Whereas only the Court may vary an order;
[14] Whereas counsel nevertheless have the power and authority to decide whether or not to make a motion when an order is not complied with;
[15] Whereas, in view of the discussions between counsel, counsel for the appellant was reasonably justified in believing that the motion would be made only for costs;
[16] Whereas the negligence of counsel for the appellant must be assessed in the context of the discussions that occurred between the counsel of record;
[17] Whereas the appellant taxpayer was not personally associated with the negligence;
[18] Whereas the evidence has shown that there was some confusion about the outcome of the motion to dismiss the appeal;
[19] Whereas no blame can be placed on the appellant personally;
[20] In view of all the submissions made by counsel when the motion in revocation was heard;
[21] The Court grants the motion in revocation of the judgment rendered by the Honourable Judge Dussault on February 9, 1999, and accordingly sets aside the said judgment.
[22] On the merits of the motion to dismiss, the Court dismisses it and orders the appellant to pay $400 as costs within five days after the service hereof.
Signed at Ottawa, Canada, this 21st day of May 1999.
“Alain Tardif”
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 5th day of April 2000.
Erich Klein, Revisor