Date: 20020507
Docket: A-119-01
Neutral citation: 2002 FCA 176
CORAM: LINDEN J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
L.R. VIVIAN ASSOCIATES LIMITED
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
Heard at Toronto, Ontario, on Monday, May 6, 2002.
Judgment delivered from the Bench at Toronto, Ontario
on Monday, May 6, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: MALONE J.A.
Date: 20020507
Docket: A-119-01
Neutral citation: 2002 FCA 176
CORAM: LINDEN J.A.
BETWEEN:
L.R. VIVIAN ASSOCIATES LIMITED
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Monday, May 6, 2002)
[1] This is an appeal by L.R. Vivian Associates Limited ("the appellant") from an order of Judge Beaubier of the Tax Court of Canada ("the Judge") dated February 14th, 2001, wherein the Judge dismissed the appellant's appeals from assessments made by the Minister for its 1992 and 1994 taxation years. The Minister had brought a motion returnable on February 7th, 2001 for an order either dismissing the appeal, or directing the appellant to retain counsel by February 12th, 2001.
[2] The appellant now argues that Judge Beaubier failed to give sufficient weight to all relevant considerations and should have imposed a less drastic remedy in dealing with the appellant's failure to retain counsel in a timely way.
[3] The record is clear that the appellant knew that it had to retain counsel to prosecute its appeal following Judge Rowe's order dated June 25th, 1999. While it is true that Mr. Vivian was in China, one does not have to be physically present in Canada to retain counsel.
[4] In our view, the appellant's feeble attempts to retain counsel demonstrate a cavalier and careless disregard for the Judge Rowe's order. Mr. Vivian knew that the appellant was required to retain counsel, and was aware that its appeal depended on his doing so. No credible steps were taken and the appellant must now bear the consequences. In our analysis, Judge Beaubier's order dismissing the appeal is appropriate when all relevant circumstances are considered including the additional evidence offered on appeal.
[5] The appeal is dismissed with costs.
"B. Malone"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-119-01
STYLE OF CAUSE: L.R. VIVIAN ASSOCIATES LIMITED
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
DATE OF HEARING: MONDAY, MAY 6, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: MALONE J.A.
DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON MONDAY, MAY 6, 2002.
APPEARANCES BY: Mr. David Rose
For the Appellant
Mr. Franco Calabrese
For the Respondent
SOLICITORS OF RECORD: NEUBERGER ROSE LLP
Barristers & Solicitors
1392 Eglinton Avenue West
Toronto, Ontario
M6C 2e4
For the Appellant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF APPEAL
Date: 20020507
Docket: A-119-01
BETWEEN:
L.R. VIVIAN ASSOCIATES LIMITED
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
OF THE COURT