Date: 20000913
Docket: 1999-3908-IT-I
BETWEEN:
JEAN-GUY GERVAIS,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Order
Archambault, J.T.C.C.
[1] The day prior to the day set for the hearing of Mr. Gervais’s appeals, counsel for the respondent again applied for an adjournment on the grounds that neither the appeals officer nor the auditor could be present at the hearing. The appeals officer was on holiday, and the auditor had a prior commitment to attend a meeting with people from the Department of Agriculture.
Facts
[2] The facts that follow are taken from information provided by counsel for the respondent and from an examination of the Court file. First of all, Mr. Gervais filed his Notice of Appeal with the Court on September 9, 1995. An agent of the Canada Customs and Revenue Agency filed a Reply to the Notice of Appeal with the Court on November 12, 1999. The Department of Justice opened a file for Mr. Gervais’s appeal on November 25, 1999.
[3] On April 20, 2000, the Court caused a Notice of Hearing to be sent to each party, setting July 13, 2000, as the date for the hearing of the appeal. The Department of Justice apparently received that Notice on April 24, 2000. Counsel for the respondent stated that Mr. Gervais’s file was not assigned to her until June 15, 2000, the date on which her secretary received it. In a letter dated June 19, 2000, counsel for the respondent asked the Court to issue subpoenas with respect to Mr. Gervais's case, which the Court did on June 22, 2000.
[4] By letter dated July 6, 2000, counsel for the respondent applied to the Court to have the hearing of the appeal adjourned for the reason set out above. Although Mr. Gervais did not object, the Associate Chief Judge denied the application for an adjournment and the hearing co-ordinator so informed counsel for the respondent by e-mail on July 7, 2000. Counsel for the respondent confirmed to me that it was during the week of June 18 or 25, 2000 that she had taken steps to ensure the presence of the auditor or the appeals officer.
DECISION
[5] As stated above, on the day before the hearing, counsel for the respondent reiterated her request for an adjournment. Unfortunately for her, the application was again dismissed. I told her at that time that I would provide written reasons for my decision.
[6] As one can see, counsel for the respondent took the steps referred to above at the very last minute. The Department of Justice file was opened on November 25, 1999, and that department was notified of the hearing date on April 24, 2000, that is, nearly three months in advance. It was not until less than a month before the hearing of the appeal that the Department of Justice assigned one of its lawyers to the file, and it was only on June 19, or in the days following, that steps were taken to ensure the presence of the department’s witnesses. It is thus not surprising that, with so little advance notice, some witnesses could not make themselves available.
[7] The Court has no jurisdiction to give instructions to the respondent's lawyers regarding the management of their files. However, the Court does have jurisdiction with respect to the management of the appeals that it must hear. In my opinion, the unavailability of witnesses for the hearing because counsel for the respondent was dilatory in taking the steps required is not a valid ground for granting an adjournment. Two precious months were lost in preparing for the hearing of the appeal. At the very least, the department should have notified its witnesses as soon as it received the Notices of Hearing, in order to ensure their attendance at the hearing.
[8] The parties, like the witnesses, are given three months’ notice so they may take the steps necessary to be present at the hearing. If it should prove impossible for one of the parties or one of the main witnesses to be present, the Court could always be notified to that effect. When informed in good time about such a problem, the Court is more likely to receive favourably an application for an adjournment as, in such circumstances, it is able to hear another appeal in place of the one postponed. However, it cannot make such a substitution if the application for an adjournment is made on the eve of the hearing of the appeal or even a week before. The Court has a duty to manage appeals as efficiently as possible. In the case of appeals brought under the informal procedure, section 18.17 of the Tax Court of Canada Act even requires the Court to set a hearing date within 180 days of receiving a Notice of Appeal.
[9] It is important to remember that the Court is not required to grant an adjournment, even if all the parties agree to it. For many years, this Court, like other Canadian courts, has been involving itself more in appeals management so as to ensure that the administration of justice is carried out as efficiently as possible and that appeals are heard and decisions rendered without undue delay.
[10] It is essential that the Department of Justice, taxpayers, and their agents be diligent in preparing the cases that are to come before this Court. If a party to proceedings before this Court waits until the last minute to prepare its case, it exposes itself to serious risks. It could, as here, find itself forced to present its evidence in the absence of important witnesses. In other circumstances, if an adjournment were granted, the requesting party could be required to pay a significant amount of money to compensate the other party, who may have suffered harm from the adjournment.
[11] Since counsel informed me that she was prepared to proceed without her witness if her application were dismissed, there is no reason to order that costs be awarded to Mr. Gervais. Accordingly, the application for an adjournment is denied.
Signed at Ottawa, Canada, this 13th day of September, 2000.
"Pierre Archambault"
J.C.C.I.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 20th day of September 2000.
Erich Klein, Revisor