Date: 20040621
Docket: A-258-03
Citation: 2004 FCA 239
Present: RICHARD C.J.
ROTHSTEIN J.A.
BETWEEN:
BORIS NETUPSKY
Appellant
and
CANADA CUSTOMS AND REVENUE AGENCY
Respondent
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario on June 21, 2004.
REASONS FOR ORDER BY: SHARLOW J.A.
CONCURRED IN BY: RICHARD C.J.
ROTHSTEIN J.A.
Date: 20040621
Docket: A-258-03
Citation: 2004 FCA 239
Present: RICHARD C.J.
ROTHSTEIN J.A.
SHARLOW J.A.
BETWEEN:
BORIS NETUPSKY
Appellant
and
CANADA CUSTOMS AND REVENUE AGENCY
Respondent
REASONS FOR ORDER
[1] On June 5, 2003, the appellant Mr. Boris Netupsky filed a notice of appeal to challenge a decision of the Federal Court dated May 8, 2003. He was served shortly after that with the notice of appearance filed by the respondent (the Crown). The Federal Court Rules, 1998, SOR/98-106, then required Mr. Netupsky to take certain steps to prepare his appeal for a hearing.
[2] Within 30 days after filing his notice of appeal, that is, by July 7, 2003, Mr. Netupsky should have filed an agreement as to the contents of the appeal book (Rule 343). Within 30 days after filing the agreement (that is, by August 6, 2003), he should have prepared, served and filed the appeal books (Rule 345). Within a further 30 days (that is, by September 5, 2003), he should have served and filed a memorandum of fact and law (Rule 346). Finally, he should have served and filed a requisition for hearing within 20 days of being served with the Crown's memorandum of fact and law, or within 20 days of the deadline for filing the Crown's memorandum of fact in law, whichever was earlier (Rule 347).
[3] If all of these steps had been taken on a timely basis, the requisition for the hearing of this appeal could have been filed before the end of October, 2003, that is, within five months of the filing of Mr. Netupsky's notice of appeal, and this appeal might already have been heard.
[4] Instead, Mr. Netupsky did nothing after filing his notice of appeal. His inaction stalled all preparations for the hearing of the appeal. Mr. Netupsky did not advise the Court of any particular problems in preparing his appeal for hearing, or seek leave for an extension of time to take any of the steps required to prepare his appeal for hearing.
[5] On December 17, 2003, a notice of status review was sent to Mr. Netupsky pursuant to Rule 380(1)(b), which reads as follows:
|
380. (1) Subject to subsection (3), where [..] |
380. (1) Sous réserve du paragraphe (3), la Cour fixe la date et l'heure d'un examen de l'état de l'instance : [...] |
|
(b) in an application or appeal, 180 days have elapsed since the issuance of the notice of application or appeal and no requisition for a hearing date has been filed, |
b) dans le cas d'une demande ou d'un appel, si aucune demande d'audience n'a été déposée et que 180 jours se sont écoulés depuis la délivrance de l'avis de demande ou de l'avis d'appel. |
|
the Court shall fix a time and date for a status review. |
|
[6] The notice of status review was sent to Mr. Netupsky by registered mail to the address he gave in his notice of appeal. The notice required Mr. Netupsky to show cause by written submissions, no later than January 20, 2004, why his appeal should not be dismissed for delay (Rule 382(2)). The registered mail was returned to the Court unclaimed.
[7] On February 13, 2004, at the direction of Sexton J.A., a second notice of status review was sent to Mr. Netupsky by ordinary mail, to the same address, requiring him to show cause, by March 15, 2004, why this appeal should not be dismissed for delay. The second notice was not returned to the Court. Mr. Netupsky made no submissions in response to the notice of status review. Accordingly, by judgment dated March 29, 2004, Mr. Netupsky's appeal was dismissed for delay. The judgment was sent to Mr. Netupsky by ordinary mail.
[8] Mr. Netupsky received the judgment. On May 10, 2004, he sent to the Court a document entitled "Request for a Reconsideration of the Dismissal of the Appellant's Appeal by the Federal Court of Appeals". In that document, Mr. Netupsky indicated that he had not received the notices of status review because he was in Hawaii from November 2, 2003 to April 29, 2004.
[9] The Chief Justice directed that Mr. Netupsky's communication be treated as a motion for reconsideration of the March 29, 2004 order. The Crown filed a responding motion record on May 20, 2004 to argue that Mr. Netupsky's appeal should not be reinstated. Mr. Netupsky filed a submission in reply on May 25, 2004.
[10] In accordance with the direction of the Chief Justice, I will review the material filed by Mr. Netupsky and the Crown as though they were submissions filed in response to the notice of status review. If those submissions establish that the appeal should not have been dismissed for delay, the order dismissing the appeal will be set aside and this appeal will be permitted to continue.
[11] According to the jurisprudence of this Court, a party in receipt of a notice of status review is required to address two questions. (1) Is there a justification for the failure to move the case forward? (2) What measures does the party propose to take to move the case forward? (See Baroud v. Canada (Minister of Citizenship & Immigration) (1998), 160 F.T.R. 91 (T.D.),Manson Estate v. Canada (Minister of National Revenue), [2003] 1 C.T.C. 13 (F.C.A.), leave to appeal refused, [2002] S.C.C.A. No. 542.)
[12] The only justification offered by Mr. Netupsky for his failure to move this case forward is that, in his view, his obligations were met by the filing of the notice of appeal (which he says contains his "argument"), and that he was not required to file a requisition for hearing until after the Crown had served and filed a record pursuant to Rule 314. He also says that he proposes to file a requisition once the Crown has complied with Rule 314.
[13] The Crown argues that Mr. Netupsky has not demonstrated an ongoing intention to proceed with this appeal, that there is no reasonable explanation for the delay, and that there is no merit to the appeal.
[14] Mr. Netupsky's reliance on Rule 314 to justify his delay in preparing this appeal for hearing is flawed in two respects. First, Rule 314 has no application to this case. Rule 314 is part of Part 5 of the Federal Court Rules, 1998, which governs applications for judicial review. The judgment under appeal is the disposition by the Federal Court of Mr. Netupsky's application for judicial review of a decision made by the Minister of National Revenue. However, this proceeding is an appeal from that judgment. Appeals are governed by Part 6 of the Federal Court Rules, 1998.
[15] Second, and more importantly, even if the Crown had failed to take a step required under the Rules, it is the appellant who must take the initiative in moving a matter toward a hearing. Generally, the Rules facilitate the appellant's progress even if the respondent fails to act on a timely basis. For example, Rule 314 itself (assuming it had applied), requires a requisition for hearing to be filed "within 10 days after service of the respondent's record or the expiration of the time for doing so, whichever is earlier". Similarly Rule 347, which applies to appeals such as this case, reads as follows (emphasis added):
|
347. (1) Within 20 days after service of the respondent's memorandum of fact and law or 20 days after the expiration of time for service of the respondent's memorandum of fact and law, which is the earlier, an appellant shall serve and file requisition in Form 347 to request that a date be set for the hearing of the appeal. |
347. (1) Dans les 20 jours après avoir reçu signification du mémoire de l'intimé ou dans les 20 jours suivant l'expiration du délai de signification de ce mémoire, selon celiu de ces délais qui est antérieur à l'autre, l'appellant signifie et dépose une demande d'audience, établie selon la formule 347, afin qu'une date soit fixée pour l'audition de l'appel. |
[16] The proper consideration of an appeal requires more than simply a consideration of the appellant's legal arguments. An appeal also requires, at least, consideration of the order under appeal, the reasons for the order, the pleadings in the court below, and the documentary evidence considered in the court below. That is why an appeal book is required before the parties are required to file their memoranda of fact and law (for the required contents of an appeal book, see Rule 344).
[17] Mr. Netupsky is wrong to suggest that the Crown has failed to comply with its obligations under the Rules. The only party in default is Mr. Netupsky. He has failed to comply, in turn, with Rule 343, Rule 345, Rule 346 and Rule 347. Except for his misinterpretation of Rule 314, Mr. Netupsky has not even attempted to explain his failure to comply with those Rules.
[18] There is considerable force in the Crown's suggestion that Mr. Netupsky's actions have demonstrated a complete failure of diligence on his part. After filing his notice of appeal in June of 2003 he took no steps for many months. Then he left the country for many more months, apparently making no arrangements for receiving his mail in the interim. I am unable to conclude that Mr. Netupsky has justified the delay in preparing this matter for hearing.
[19] I would dismiss this motion for reconsideration on the basis that Mr. Netupsky has failed to provide a satisfactory response to the notice of status review.
[20] As the Crown has not requested costs, none should be awarded.
(s) "K. Sharlow"
J.A.
"I agree
J. Richard, Chief Justice"
"I agree
Marshall Rothstein J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-258-03
STYLE OF CAUSE: BORIS NETUPSKY and Canada Customs and Revenue Agency
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: SHARLOW J.A.
DATED: June 21, 2004
WRITTEN REPRESENTATIONS: NONE
SOLICITORS OF RECORD:
Boris Netupsky Appellant on his own behalf
Lions Bay, British Columbia
Morris Rosenberg For the respondent
Attorney General of Canada
Ottawa, Ontario