Date: 19991116
Docket: 97-400(IT)I
BETWEEN:
JOHL H. READY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
(Delivered Orally from the Bench at Edmonton, Alberta,
on Wednesday, September 22, 1999)
Margeson, J.T.C.C.
[1] The matter before the Court at this time is for trial. It is that of Johl H. Ready, 97-400 Income Tax Informal. This matter was originally set for hearing on August 6, 1998, and at that time the Appellant appeared before Judge Rowe and asked Judge Rowe for an adjournment of the matter. Judge Rowe in his decision of August 6, 1998 adjourned to allow the Appellant time to issue the required notices. It does not say anything about obtaining a lawyer's advice, whether the Appellant indicated to the Judge at that time that he wanted to get a lawyer or not, I do not know, it is not clear from the file. But he did not adjourn it to get a lawyer, he adjourned it to allow the required notices to be issued.
[2] The Court is satisfied that at that time, back on August 6, 1998, the Appellant knew that he had to serve these notices under the Federal Court Act or he was not going to be able to raise the argument under the Charter of Rights.
[3] Judge Rowe addressed the Appellant at that time, and Mr. Ready responded. Ms. Horowitz was acting for the Minister at the time. They did not object to an adjournment to allow the notices to be issued. The judgment says:
"Adjourned to allow Appellant time to issue the required notices. Trial to be rescheduled at that time."
[4] Now following that nothing was done by the Appellant, that the Court can see. The matter was obviously brought forward by the Tax Court of Canada and came before Judge Christie on February 23, 1999. There is a letter in the file dated August 21, 1998, which would have been following the hearing of August 6, and this letter is from the Tax Court of Canada to Mr. Ready at his address, and it says:
"The purpose of this letter is to confirm that on August 6, 1998 in Edmonton, the Honourable Judge Rowe adjourned the hearing of this appeal to allow the appellant time to issue the required notices to all the Attorney Generals of the provinces.
It is understood that once these notices have been served, the appellant will contact the Court to reschedule this matter at the next available sitting in Edmonton, Alberta.
Should you have any questions, please contact me ..."
[5] That was a letter that went to Mr. Ready. Obviously nothing was done following that letter, because the next notice the Tax Court has about it is an order of Chief Judge Christie of the Tax Court of Canada dated February 23, 1999, which says:
"IT IS ORDERED that the hearing in this matter, which was scheduled for August 6, 1998 in Edmonton, Alberta, is adjourned and is fixed peremptorily before this Court at the Scotia Place, 5th floor, Tower 1, 10060 Jasper Avenue, Edmonton, Alberta, commencing at 2:00 p.m. on Wednesday, the 22nd day of September, 1999."
That was a peremptory trial order.
[6] A letter was sent out to the Appellant enclosing a certified copy of that order. That is dated February 24, 1999 and says:
"We enclose herewith a certified true copy of the formal Interim Order in the above-noted matter..."
[7] That order was the one signed by Judge Christie, setting the matter down for this date.
[8] On July 13, 1999 the Appellant wrote to the Tax Court of Canada and said, amongst other things:
"...that the Judge who adjourned the matter on August 8 agreed that I had the right to legal counsel, including research".
[9] There is nothing in the order about that. There is nothing to indicate that the Judge said that. As I read from the minutes, although that may have been the Appellant's interpretation. The Appellant certainly has the right to legal counsel, but it is not Judge Rowe's place to appoint counsel, it is not Judge Rowe's place really to give him advice about legal counsel except to say that he had the right to have counsel. There was nothing improper about that. The Appellant interpreted it as being that he had the right to legal counsel including research and may have interpreted it as something more, I do not know. There was reference in the minutes to it being crucial to have the legal research done so that it could be presented before an arbitration hearing before the Public Service Staff Relations Board against his employer, Indian Affairs. That matter represented a sizeable sum of money. The Judge knew of this in granting the adjournment. That arbitration did not go according to schedule.
[10] The Appellant wrote to the Tax Court on July 13, 1999:
"...I do not know what adjournment to ask from the Tax Court of Canada. My gut feeling is that it will take at least another 6 months to get the employer back to adjudication. The decision being published and get a cheque into my hands. Perhaps Ms. Henry could provide you with a better estimate. Following that, the legal firm requires a period of time.
Please try to get an adjournment, that you think is appropriate, without my having to go to Court September 22, 1999 to do so. My reasoning is that the adjournment after August 6, 1998 was an indeterminate amount of time, and setting another date is no different than your deciding that September 22, 1999 was appropriate..."
[11] Following that the Tax Court was advised by Yaskowich the Department of Justice:
"...the Respondent opposes the Appellant's request for an adjournment. It is our position that the Appellant has not prosecuted his appeal without delay, as indicated by the time that has passed since his last adjournment and his failure to file the Notice of Constitutional Question which, we believe, was the reason for Judge Rowe's adjournment."
[12] Then we have a letter from the Tax Court dated July 29, 1999 to Mr. Ready:
"This will acknowledge receipt of your letter received July 26, 1999 requesting an adjournment of the hearing in the above-noted case set down for September 22, 1999 in Edmonton.
This will confirm that your request for adjournment has been denied and the parties must be prepared to proceed on Wednesday, September 22, 1999 as scheduled."
[13] Now we are here today. Mr. Ready is not ready to proceed. Mr. Ready has not sent out the notices. Mr. Ready has not received any legal advice since 1998, and he says he wants an adjournment of about another year. Part of the request is based upon the fact that he cannot afford to get a lawyer, he does not have the money to pay a lawyer. When asked about why he did not get legal aid, he said he does not qualify for legal aid because he is employed and they do not consider this to be an exceptional case.
[14] The important point is that he has not done anything to obtain any legal advice since 1998, like canvassing a lawyer as to whether a lawyer would file the notices without seeking his money up front, whether the lawyer would take time payments. He has not really sought any legal advice since 1998.
[15] Now he asks today that the Court wait until another adjudication of his claim is heard and then after that he expects that he will have some money to be able to afford a lawyer to send out the notices. There is no indication that he will be successful in his adjudication. The hearing in that case has nothing to do with the present case. It is not tied to this present case at all.
[16] What is involved here is the fact that the Appellant has had a hearing date set some time ago. It was adjourned by Judge Rowe in order to give him an opportunity to take the requisite steps in order to have the appeal perfected. As far as this Court is concerned he has not done anything along that line at all. He has not even attempted to send out the notices himself, which of course he could do. The important thing for this Court is that he has not sought any legal advice since 1998, he has not attempted to do anything about the case and he was advised very clearly by the Minister that she was objecting to any further adjournment. He was advised by the Tax Court on July 29 that they were not going to go along with an adjournment and that he should be ready to proceed today. Even then he did not attempt to see any lawyer, through legal aid or otherwise. He took no steps to satisfy the procedural requirements by sending out the requisite notices.
[17] The Minister's agent objects to any further adjournment. Her position basically, and put bluntly, is that he has been given plenty of time. He has not taken any steps to try to get the matter heard, he is not prepared to go ahead today. The Minister was not advised, since its letter to him and the letter of the Tax court on July 29, that he was going to come today and seek an adjournment before the Court as far as I can see form what counsel has told me.
[18] The Court is satisfied on the basis of all of the evidence that this is not a proper case in which to grant an adjournment. This is the third time that this matter has been dealt with by this Court and the Court is not satisfied that the Appellant has made out a case for a further adjournment.
[19] The Court is satisfied the Appellant has not moved with reasonableness to take the necessary steps to file the notices or have them filed on his behalf. He has not satisfied the Court that he has taken any reasonable steps to try to obtain a lawyer since 1998, and the Court is satisfied that basically he is content to rely upon the fact that since the Court granted him an adjournment at least on one other occasion, that he would obtain an adjournment again. This matter has been considered by three different Judges of the Tax Court. It has been set down at least twice, and the Court is not satisfied that it would be reasonable for it to grant an adjournment in the matter.
[20] The Court calls upon Mr. Ready. The Court gives him the opportunity to put before it any evidence that he wants to today and to proceed. The argument will probably be made that he has not served the necessary documents under the Federal Court Act but that will be dealt with in due course. But we are here now and we will have to hear the appeal.
[21] Mr. Ready, what do you want to do? I am not going to grant an adjournment.
MR READY: Nothing further to say, sir.
HIS HONOUR: Nothing further All right, counsel.
MS. MOON: In the circumstances then the crown would move for dismissal of the appeal.
HIS HONOUR: Let the record show that the Court has given Mr. Ready the opportunity to present evidence if he wishes to. You do not wish to present evidence then, Mr. Ready?
MR. READY: What's that?
HIS HONOUR: You do not wish to give evidence in the matter?
MR. READY: I am not capable of presenting evidence, sir.
HIS HONOUR: The Appellant is not going to call any evidence and does not want to address the Court further with respect to the Motion.
[22] The Court dismisses the Motion to adjourn and the Court, under the circumstances, has no alternative but to dismiss the case for want of prosecution.
[23] All right, thank you, Mr. Ready; thank you, counsel.
Signed at Ottawa, Canada, this 16th day of November 1999.
|
"T.E. Margeson" |
J.T.C.C.
COURT FILE NO.: 97-400(IT)I
STYLE OF CAUSE: Johl H. Ready and Her Majesty the Queen
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: September 22, 1999
REASONS FOR JUDGMENT BY: the Honourable Judge T.E. Margeson
DATE OF JUDGMENT: November 16, 1999
APPEARANCES:
For the Appellant: The Appellant himself
Counsel for the Respondent: B. Moon
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada