Date: 20000928
Docket: 97-3664-IT-I
BETWEEN:
JAMES T. JOHNSTON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for order
Bowman, A.C.J.
[1] This is an motion for an order setting aside the dismissal of the appellant's appeals. Upon the hearing of the motion the appellant appeared and requested an adjournment. I denied the adjournment, in part because of the numerous delays that have already occurred and in part because no purpose would be served by a further adjournment.
[2] The record of this court discloses the following sequence of events:
1. In a letter dated February 11,1997, the appellant filed an application for an order extending the time within which he may serve a notice of appeal in respect of his 1994 and 1995 taxation years. He was 133 days beyond the expiry date for the 1994 taxation year, but within the time limit for the 1995 taxation year.
2. By order dated October 8, 1997, St-Onge J. granted the following order:
... The Applicant has 30 days from the date of this Order to file a Notice of Appeal well substantiated.
3. On November 14, 1997 (six days past the deadline), the appellant filed a document purporting to be a notice of appeal.
4. In a letter dated November 25, 1997, the registry of this court requested additional information from the appellant.
5. In a letter dated December 15, 1997, the appellant requested another extension of time to file his notice of appeal for 1995.
6. A notice of appeal dated December 18, 1997 was filed by the appellant.
7. On June 30, 1998, the respondent filed a notice of motion requesting that the appeals be dismissed on the basis that the notice of appeal was not filed within the 30-day period as stipulated by St-Onge J. in his October 8, 1997 order.
8. On July 2, 1998 the appellant was served with the notice of motion advising him that the motion was scheduled to be heard on July 16, 1998 in Fredericton.
9. The appellant failed to appear at the hearing of the motion on July 16, 1998 in Fredericton.
10. In an order dated July 27, 1998, Brulé J. granted the respondent's motion and dismissed the appeals for the 1994 and 1995 taxation years.
11. In a letter dated December 8, 1998 the appellant requested that the order of July 27, 1998 be set aside, and that his appeals be heard. He claimed that "on July 16, 1998" he "missed the court date on ... [illegible] as I had a lot on my mind".
12. By notice of hearing dated January 8, 1999, the registry of this court advised the appellant that his motion was scheduled to be heard on February 9, 1999 at 9:30 in Saint John.
13. In a letter dated January 14, 1999, the appellant asked the court for an adjournment of his "appeal", in order to "develop his case".
14. In a letter dated January 29, 1999, this court advised the appellant that his request for an adjournment was denied, and that the motion would proceed as scheduled on February 9, 1999, in Saint John.
15. The appellant failed to appear at the hearing of his motion on February 9, 1999 in Saint John.
16. In an order dated February 15, 1999, Bowie J. dismissed the appellant's motion to set aside the order of Brulé J. of July 27, 1998.
17. In a letter dated April 12, 1999 received and filed May 11, 1999, the appellant asked again to have his appeals heard for 1994 and 1995. He claimed that he thought the hearing was to be in Fredericton, despite having received notification of the hearing's location from the court on two separate occasions. He claims that he drove to Fredericton only to find out that he was in the wrong court.
18. By notice of hearing dated May 26, 1999, this court advised the appellant that his motion was scheduled to be heard on June 1, 1999 at 2:00 p.m. in Fredericton.
19. The appellant failed to appear at the hearing of his motion on June 1, 1999 in Fredericton.
20. In an order dated June 11, 1999, Hamlyn J. dismissed the appellant's application, with the following remarks:
Whereas the Appellant was not present when the case was called, although duly notified of the time and place of the hearing;
And whereas no one appeared on his behalf;
And whereas the Appellant has an extensive history of non appearances before the Court although duly notified of the time and place of the hearings.
21. In a June 4, 1999 letter, received June 16, 1999 the appellant said he could not attend the June 1, 1999 hearing because he received the notice "last Friday" and had a "ruptured L5 disc".
22. By letter dated June 28, 1999 the court informed the appellant that further to the orders of June 27, 1998 and June 11, 1999 there were no outstanding issues to be dealt with by the court and that his request for an extension of time to pay his taxes should be sent to Revenue Canada.
23. In a letter dated July 9, 1999 received August 10, 1999 the appellant wished to appeal the dismissal under 18.2(2) and asked how.
24. By letter dated August 31, 1999 the appellant stated he would like to appeal and by letter dated November 24, 1999 the appellant apologized for the tardiness of the letter.
25. In a letter dated July 7, 2000 received and filed July 14, 2000, the appellant asked the court to reopen his case on the basis that he was disabled and bed-ridden starting April 15, 1999. He claims that the peremptory dismissal of his appeal is "cruel and unusual treatment", and that he can now attend "a half-hour at a time with one hour breaks".
26. By letter dated August 1, 2000 the respondent opposed the request to reopen but stated that she would appear in court.
27. In an order dated August 2, 2000, Chief Judge Garon fixed the hearing of the appellant's application on a peremptory basis for 9:30 a.m. on Thursday, August 24, 2000 in Saint John.
28. By letter dated August 4, 2000 received August 21, 2000, the appellant requested a "court order to Appeal Court" re the summer 1999 hearing.
[3] On August 17, 2000 received August 28, 2000 the appellant wrote to the court and asked that the application be adjourned from August 24, 2000 on the basis that he had not received a 30-day notice.
[4] Obviously there is no merit in this position. We are dealing here with the appellant's own motion that has been set down numerous times because the appellant did not appear. The 30-day notice does not apply to motions. An adverse party has to give a 10-day notice of a motion.
[5] By letter dated August 24, 2000 received September 5, 2000 the appellant stated that he wished to appeal the hearing on the grounds that "he could not hear the Judge talk" and had severe pain.
[6] In a letter dated September 6, 2000 received on September 14, 2000 the appellant wants to know how to appeal the decision.
[7] As noted above the matter came on before me on August 24, 2000.
[8] The respondent argues that I have no jurisdiction to set aside the dismissal of the appellant's appeals. I prefer not to put the matter on that basis. I am reluctant to restrict this court's jurisdiction to deal with its own processes. Whatever merit there may be in the argument that I cannot, in effect, hear an appeal from the orders of Brulé, Bowie and Hamlyn JJ. — and there certainly is merit in the contention — I prefer to put the matter on the basis that Dr. Johnston has abused the processes of the court with his seemingly endless motions – frequently in the form of hand-written notes on small scraps of paper of the size used by medical persons in giving prescriptions — and even if I had the discretionary power to set aside the order that dismissed his appeals this is not a case in which that discretion should be exercised in the appellant's favour.
[9] I feel considerable sympathy for Dr. Johnston. He has had a large number of problems. Nonetheless, the court has shown him extraordinary patience. We cannot continue to entertain pointless motions.
[10] The motion is dismissed.
Signed at Ottawa, Canada, this 28th day of September 2000.
"D.G.H. Bowman"
A.C.J.