Date: 20010803
Docket: 2000-4047-IT-I
BETWEEN:
JAMES JOHNSTON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
For the Appellant: No one appeared
Counsel for the Respondent: Christa MacKinnon
____________________________________________________________________
Reasons for Judgment
(Delivered orally from the Bench at Saint John, New Brunswick, on July 12, 2001)
Bowie J.
[1] Ms. MacKinnon, since I told you this morning of the telephone conversation that had been relayed to me, I have heard from the trial coordinator in Ottawa that he has received two voice mail messages from Dr. Johnston. The first of those was to the effect that he would not be appearing today, and that he would not be appearing tomorrow. The second of those was to the effect that he had thought it over and he would be filling out subpoenas returnable for 9:30 a.m. and 12:30 p.m. Now, that is somewhat lacking in particularity, but I presume that that is a reference to Friday, July 13 at 9:30 a.m. and 12:30 p.m. As to the question of who he proposes to subpoena, I have no idea. I simply pass that on to you so that you will know what Dr. Johnston has communicated to the Court.
[2] MS. MacKINNON: Your Honour, just the voice mail message was received today that he would not be appearing today and he would not be appearing tomorrow?
HIS HONOUR: That was the first one this morning that the trial coordinator got. The second one related to the subpoenas.
MS. MacKINNON: Your Honour, if it is appropriate, the Respondent would like a motion at this point to dismiss this appeal. The Appellant has not appeared. We have not had any medical certificate showing why he has not appeared. If the Court would entertain a motion to dismiss the Respondent would love to make it at this point.
HIS HONOUR: Well, the chronology of this matter as best I can put it together is that Dr. Johnston was sent a Notice of Hearing at the end of May this year which provided that his hearing was to take place on July 13, which is tomorrow. He wrote a letter, dated May 21, to the trial coordinator, in which he referred to himself as physically incapacitated. He requested in that letter that his appeal be heard by teleconference or by 40-minute sessions with a two-hour break, and a maximum of two sessions per day. And then he goes on to refer to his severe spinal disability, and finally says, "I am litigating the Tax Court" - I presume it means in the Tax Court - "only for breach of section 15 of the Charter of Rights". I am not quite sure what that means in the context of what he said on Tuesday of this week about his grounds of appeal.
[3] At any rate, that letter is postmarked June 13, 2001, 4:31 p.m., although it was dated May 21, and it was in fact received June 21, 2001, by the Court. It was considered by the Chief Judge - and I think I said this on Tuesday in Dr. Johnston's presence - the Chief Judge determined that there would not be an appeal heard by teleconference, but that the Court would accede to his request that his appeal be heard in sessions of 40 minutes, no more than twice a day, and with at least two hours between each of them. In order to accommodate that, and having in mind that the Court, being an itinerant Court, which sits for a week in any given place, and had scheduled actually four days of sittings in Saint John for this week, the trial coordinator wrote to Mr. Johnston - and I do not have the exact date of that letter before me, but it was about two weeks ago now - and indicated to him that, to accommodate his request, the appeal hearing would begin on Tuesday July 10, 2001, at 9:30 a.m., and that on that day there would be two 40-minute sessions, and that there would be at least one, and if possible two, 40-minute sessions on each of Wednesday, July 11, and Thursday, July 12, which is today. And if necessary, two more sessions could be held on Friday, July 13, that date being entirely reserved for Dr. Johnston's appeal when appeals were scheduled for the week.
[4] Dr. Johnston appeared here on the morning of Tuesday, July 10, 2001, at 9:30 a.m. At that time he asked me to recuse myself, and he asked for an adjournment of his appeal even if I chose not to recuse myself, on the basis that he was no longer being given 30 days' notice of the hearing of his appeals as the Rules provide for, in as much as it was less than 30 days prior to July 10 when he was told that we would begin on July 10.
[5] I considered his motions during the two-hour interval between the two 40-minute sessions that were held on Tuesday, and after careful consideration of my Reasons for Judgment, given about four years ago, and the passage in particular to which Dr. Johnston alluded, I reached the conclusion -- and I expressed this at the beginning of the second 40-minute session on July 10 - that my previous Reasons for Judgment were not such as to raise any reasonable apprehension of bias on the part of anyone apprised of the facts and having reasonable ability to understand; so I decided, and conveyed to him at that time, that I would not recuse myself. I should perhaps mention that Dr. Johnston made no suggestion or allegation of actual bias on my part, as the motion was founded entirely on a reasonable apprehension of bias, which he submitted came out of my earlier Reasons.
[6] The balance of the second 40-minute session on July 10 was taken up going through Dr. Johnston's two handwritten letters which constitute his Notice of Appeal, with a view to trying to ascertain for the benefit of the Court what the exact issues being raised by him are. I should say also that I dealt with his application to adjourn the hearing at that time as well. He was unable to suggest to me any prejudice that he might suffer by having to begin on Tuesday, and continue on Wednesday and Thursday, rather than not beginning his appeal until the date scheduled, Friday, July 13. I indicated to him that since he was unable to tell me of any evidence that he wanted to call that would not be available before that date, and he was unable to point out any possible prejudice to me, I did not propose to adjourn the appeal with the concomitant waste of court time which, of course, represents public resources. I did say to him, however, that if the circumstances made it necessary to re-open the Appellant's case on Friday, July 13 to call additional evidence not otherwise previously available then I would be amenable to any such motion on his behalf.
[7] At the conclusion of the second 40-minute session on Tuesday, the matter was put over to recommence the following morning at 9:30 a.m. with a view to having two 40-minute sessions on Wednesday, July 11, if possible. And as history devolved it would in fact have been possible in yesterday's schedule to have fit in a second 40-minute session for Dr. Johnston. However, at about 4:30 p.m. on Tuesday, July 10, Dr. Johnston telephoned the trial coordinator's office and advised the coordinator that as a result of the two 40-minute sessions held on Tuesday, July 10 "his leg was ‘twitching' and that he would probably not be able to attend the third session" scheduled for July 11 at 9:30 a.m. And he went on to indicate that he was not sure if he would be able to attend on Wednesday afternoon either. The trial coordinator indicated to him that he should telephone the Court in Saint John and advise the Registrar here, Madame Plourde, to that effect.
[8] On Wednesday morning, I directed the Registrar, Madame Plourde, to telephone Dr. Johnston and inform him that he would be expected to appear at 2:00 p.m. for the continuation of his appeal, he not having appeared when the matter was called at 9:30 a.m., and to indicate to him that if he was unable to be here for medical reasons that he should have somebody attend on his behalf bringing a medical certificate that would confirm that his medical condition is such as to prevent his attendance.
[9] Dr. Johnston did not attend either on Wednesday at 9:30 a.m., as I have said, nor on Wednesday at 2:00 p.m. He did, however, have a letter delivered to the Court prior to 2:00 p.m. in which he said -- and I have paraphrased this letter on the record earlier -- that his doctor is on vacation; that he called a Dr. Maloney three times and was unable to get an answer; that another doctor was out of town and couldn't be reached, and that generally it was impossible for him either to attend, or to have a medical certificate brought to the Court. Along with that letter was a photocopy of a letter addressed "To Whom It May Concern" dated July 5, 2000 signed by a Dr. D.C. Macmichael, which reads:
This gentleman apparently is involved in a court case. He is concerned that he will have to sit for prolonged periods of time, or he may have to leave in the middle of the case.
He is very sore with sitting for very short periods of time and I would think that twenty minutes to half an hour is the maximum he could sit. He would then need to lay down for an hour or so to rest.
He does have numerous medical conditions as well as spinal stenosis of the spine, pinching the nerves causing discomfort with any prolonged sitting.
He feels he could manage if he could sit for twenty minutes or half an hour, rest for an hour and then go back for another twenty minutes or half hour.
I hope this will be of some help with his proceedings.
Now, as I noted, that letter is dated slightly more than a year ago, July 5, 2000 and I am not aware of any more recent letter from a medical practitioner dealing with the question of Dr. Johnston's ability or inability to attend Court.
[10] The Chief Judge made his direction as to the manner of the hearing upon the statement of Dr. Johnston in his letter of May 21, 2001, without requiring any further medical opinion - or I should perhaps say any medical opinion -- to support it. Following Dr. Johnston's non appearance at 2:00 p.m. on Wednesday, July 11, I directed the trial coordinator to telephone Dr. Johnston and indicate to him that he should attend court on Thursday, July 12 at 9:30 a.m. ready to proceed, or produce a medical certificate from a doctor indicating that his medical condition would prohibit him from being in court this morning. The trial coordinator did that, and the reply to him from Dr. Johnston was to ask him to relay to me that he would probably not be able to attend court Thursday morning at 9:30 a.m.; that he tried to obtain a medical certificate but could not; and that "maybe" he would be in court on Friday, July 13 at 9:30 a.m.
[11] Since that time Dr. Johnston has left two voice mail messages for the trial coordinator in Ottawa. The first of those was to the effect that he would not attend court either today, July 12, or tomorrow, July 13. The second of those was to the effect that he might reconsider with respect to July 13, and that he was proposing to issue subpoenas returnable July 13 at 9:30 a.m. and at 2:30 p.m. I am sure it would be obvious to Dr. Johnston at this point that if his appeal were begun tomorrow, or for that matter if it were begun today, it is most unlikely that I would be able to complete the hearing of it before the end of this week. The scheduling in this court is done six to nine months in advance, and it would not be particularly desirable for me to become seized of a case that I am unable to complete. And if I did become seized, it would most likely be many months, perhaps a year or more, before it would be possible to complete the hearing of it. The inconvenience to the Appellant, to the Respondent, to the Court and to other litigants has already been significant but would become much more significant.
[12] As I said yesterday, I could understand that Dr. Johnston might have some difficulty reaching a doctor on very short notice to examine him and write a report as to his ability, or lack of it, to attend court. That was yesterday. Today is some 27 hours later. Absent either Dr. Johnston or some current written statement from a medical practitioner that his condition is such that he is unable to attend court, and when I say unable, I mean unable as opposed to it would be difficult or uncomfortable for him to attend court, because the Court has already gone a long way to accommodate the pain which he says he suffers, I am not inclined to adjourn this matter any further.
[13] I think it is a reasonable inference to draw that Dr. Johnston's absence from Court on Wednesday, July 11 and on Thursday, July 12 is attributable more to his dissatisfaction with my ruling on his motion to recuse myself, and with my ruling on his motion to adjourn the hearing of his appeal, which of course would have the same practical effect as if I had granted his motion to recuse myself, than with his condition. I am going to dismiss Dr. Johnston's appeal for non-attendance. It is true that he attended the two 40-minute sessions held on Tuesday. No evidence was heard during those sessions. The onus of proof lies with the Appellant and the Appellant is not here to give any evidence to discharge that onus of proof.
[14] I have a motion from the Crown to dismiss the appeal and I propose to do so. However, I am going to add this: I will not sign the formal judgment to that effect before August 1, 2001. I am going to direct that the transcript this morning of my Reasons for dismissing the appeal be prepared on an expedited basis, and that it be sent to Dr. Johnston by ordinary and by registered mail, and also to the Respondent. If I receive an independent medical certificate in satisfactory form which states unequivocally that Dr. Johnston's medical condition, as it manifested itself this week, was such that it would have been impossible for him to attend court on Wednesday, July 11 or on Thursday, July 12 - and when I say "impossible" I do not mean that it would have been uncomfortable for him; I do not mean that it would have caused him some pain; I mean that it would not have been possible for him to proceed within the parameters set for the hearing of his appeals, then I may adjourn the matter sine die rather than sign the formal Order dismissing the appeals. There is, I think, authority in the jurisprudence that I am not functus officio until such time as the Order in writing is signed. Any such medical certificate should, of course, be sent to the Registrar's office in Ottawa, and a copy of it should be sent at the same time to counsel for the Respondent at her office in Halifax.
[15] That is my disposition of the matter.
Supplementary Reasons for Judgment
[16] On July 12, I delivered Reasons for Judgment at Saint John, New Brunswick, dismissing these appeals. In those Reasons for Judgment, I said that I would not sign the Judgment until August, in order to give the Appellant an opportunity to obtain a current medical certificate that might justify his absence from Court on July 11 and July 12. Those Reasons for Judgment were sent to the Appellant on July 16.
[17] The Appellant has since written to the Registrar of the Court[1] saying, among other things, that he would provide a current medical certificate. None has been received, however, and I have therefore signed Judgment dismissing the appeals.
[18] I should add that the Court file contains a photocopy of a medical certificate of Dr. Douglas Macmichael dated June 18, 2001, which I failed to mention in my oral Reasons of July 12, 2001. This certificate suggests that the Appellant could sit for 10 to 40 minutes before experiencing distracting pain. It is not clear how this came to be on the Court file, but it may well be the basis upon which the Chief Judge agreed to the Appellant's request to have the hearing conducted in 40-minute sessions. In any event, it does not explain the Appellant's absence on July 11 and July 12, 2001.
Signed at Ottawa, Canada, this 3rd day of August, 2001.
"E.A. Bowie"
J.T.C.C.
COURT FILE NO.: 2000-4047(IT)I
STYLE OF CAUSE: James Johnston and Her Majesty the Queen
PLACE OF HEARING: Saint John, New Brunswick
DATES HEARING CALLED: July 10, 11 and 12, 2001
REASONS FOR JUDGMENT BY: The Honourable Judge E.A. Bowie
DATE OF JUDGMENT: August 3, 2001
APPEARANCES:
For the Appellant: The Appellant himself on July 10, 2001
No one appeared on July 11 and 12, 2001
Counsel for the Respondent: Christa MacKinnon
COUNSEL OF RECORD:
For the Appellant:
Name: N/A
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2000-4047(IT)I
BETWEEN:
JAMES JOHNSTON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeals called for hearing on July 10, 11 and 12, 2001, at Saint John, New Brunswick, before the Honourable Judge E.A. Bowie
Appearances
For the Appellant: The Appellant himself on July 10, 2001
No one appeared on July 11 and 12, 2001
Counsel for the Respondent: Christa MacKinnon
JUDGMENT
The Appellant having appeared before the Court on July 10, 2001, and it having been ordered that the hearing of his appeals would continue on July 11, 12 and 13, 2001;
And the Appellant having failed to appear on July 11 and 12, and having failed to provide evidence of his inability to appear on those dates;
And counsel for the Respondent having moved for dismissal of the appeals;
The appeals from assessments of tax made under the Income Tax Act for the 1996, 1997 and 1998 taxation years are dismissed.
Signed at Ottawa, Canada, this 3rd day of August, 2001.
|
"E.A. Bowie" |
J.T.C.C.