Federal Court of Appeal - Johnston v. R.

[1] This is an application pursuant to section 18.24 of the Tax Court of Canada Act and section 28 of the Federal Court Act for judicial review of an order of the Tax Court of Canada, in which Bowman A.C.J.T.C.C. dismissed an application made by Mr. Johnston. He had moved to have an order of dismissal of his appeals set aside pursuant to subsection 18.21(2) of the Tax Court of Canada Act.

[2] The Associate Chief Judge of the Tax Court of Canada, on September 28, 2000, dismissed the applicant's motion on the basis that the applicant had abused the processes of the Court with numerous motions and failures to appear. He made an extensive review of the events leading to his conclusion. Proceedings initiated by the applicant in February 1997 in respect of the 1994 and 1995 taxation years had, in fact, as of June 11, 1999 when they were dismissed by Hamlyn J., simply made no real and significant progress towards their resolution. More than three years later, the applicant is still before the courts and, in terms of the merits of the applicant's challenge to the Minister's reassessment for his 1994 and 1995 taxation years, the proceedings have not progressed at all as a result of Mr. Johnston's behaviour.

[3] We should add that the applicant has failed to appear before us on October 17, 2002 although he was duly informed by phone on July 12, 2002 of the date of the hearing as well as served on July 24, 2002 with a notice to the same effect.

[4] In Yacyshyn v. Her Majesty the Queen, A-416-98, February 11, 1998, at paragraph 12, this Court held that the Tax Court had the inherent jurisdiction to prevent an abuse of its process. Upon review of the Tax Court decision, we believe that there was sufficient evidence before the Court to warrant a conclusion that the applicant has abused the process. His unexplained failure to appear before us constitutes additional evidence of an abusive pattern taken by the applicant.

[5] The application will be dismissed with costs.

"Gilles Létourneau"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-687-00

STYLE OF CAUSE: JAMES T. JOHNSTON, Applicant

HER MAJESTY THE QUEEN, Respondent

PLACE OF HEARING: Fredericton, New Brunswick

DATE OF HEARING: October 17, 2002

CORAM: RICHARD C.J.

LÉTOURNEAU J.A.

NADON J.A.

REASONS FOR JUDGMENT

OF THE COURT BY: LÉTOURNEAU J.A.

DATED: October 17, 2002

APPEARANCES:

FOR THE APPELLANT

Mr. John Smithers FOR THE RESPONDENT

SOLICITORS OF RECORD:

122 Courtney Avenue FOR THE APPELLANT

Saint John, N.B. E2J 1N5

Department of Justice Canada FOR THE RESPONDENT

Suite 1400, Duke Tower

5251 Duke Street

Halifax, N.S. B3J 1P3