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Date: 20031127
Docket: A-420-02
Citation: 2003 FCA 451
LÉTOURNEAU J.A. NADON J.A.
BETWEEN:
GUY DIONNE 585 Montée Wakeham Gaspé, Quebec G4X 2R6
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
Hearing held at Québec, Quebec, on November 25, 2003.
Judgment delivered at Québec, Quebec, on November 27, 2003.
REASONS FOR JUDGMENT: DÉCARY J.A.
CONCURRED IN BY: LÉTOURNEAU J.A. NADON J.A.
Date: 20031127
Docket: A-420-02
Citation: 2003 FCA 451
LÉTOURNEAU J.A. NADON J.A.
BETWEEN:
GUY DIONNE 585 Montée Wakeham Gaspé, Quebec G4X 2R6
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
DÉCARYJ.A.
[1] The Applicant appealed to the Tax Court of Canada three notices of assessment in which the Department of National Revenue had added about $145,000 in undeclared business income in the computation of his income. A penalty of about $1,000 had been added for late filing. The taxation years at issue were the years 1995, 1996 and 1997. [2] The Applicant elected to proceed under the informal procedure. He did not think it worthwhile to retain counsel and he showed up at the hearing in the company of a person, Ms. Francoeur, who had been responsible for his bookkeeping since 1997. This person was not an accountant.
[3] His books had been audited by an official of the Minister for the taxation years 1995 and 1996. This audit had led to a significant reduction in the amounts originally claimed by the Ministert. An audit could not be carried out for the 1997 taxation year because the Applicant systematically refused to remit the relevant documents to the Minister's official.
[4] Although the notice of hearing expressly informed the Applicant that "[Translation] all relevant documents in support of this appeal must be produced at the hearing of the appeal", the Applicant did not bring any documents to the hearing. He said to the Court, at page 61 of the transcript,"[Translation] What, was I supposed to come here with six cases of stuff?"
[5] A review of the transcript indicates that the Applicant believed that the Court was going to proceed with a new audit - although that does not explain why he still had not produced the relevant documents. The judge patiently explained to him, several times, what his burden of proof was. At one point (page 17 of the transcript) the taxpayer said: "[Translation] That's not at all what I expected this morning, because if I had known it was going to be like this, I would have gotten somebody, a lawyer, to represent me . . . ."
[6] At the end of the hearing, the judge dismissed the appeal and upheld the assessments.
[7] The Applicant is asking the Court, by way of judicial review, to set aside the judgment on the ground that his right to a fair hearing was breached. He claims, and here I quote paragraph 15 of his affidavit, that: [Translation] The judge of the Tax Court of Canada, seeing that I did not understand how the court operated, should have postponed the hearing and allowed me to have access to a lawyer and/or a certified accountant so that I could come back to this court and start over with appropriate arguments.
[8] The Applicant is basically bidding this Court to decide that a judge of the Tax Court of Canada has the obligation, according to the principles of natural justice, to adjourn a hearing of his or her own initiative as soon as a taxpayer who has elected not to be represented realizes that he would undoubtably have been better off if he had retained the services of a lawyer.
[9] This proposition is untenable. Litigants who elect to act as their own counsel do so at their own risk. To use the words of Pelletier J.A. in Wagg v. Canada (Attorney General), 2003 FCA 303, at paragraph 25, "litigants who choose to represent themselves must accept the consequences of their choice." If a judge is free to refuse a request for adjournment (see Schurman v. The Queen, 2003 FCA 393), it only stands to reason that he himself is not bound to offer a litigant the opportunity for a adjournment to enable the litigant to "start over" with the case.
[10] It is certain, as Pelletier J.A. indicates at paragraph 24 of his reasons in Wagg, that the trial judge "must be governed by considerations of fairness" if it becomes "patently obvious" that the litigant does not understand "the subject matter sufficiently to be able to proceed" and that he can then suspend or adjourn the hearing. This, however, is a matter of discretion and nothing here would indicate that the trial judge exercised his discretion in a manner that calls for our intervention.
[11] The Applicant was an experienced businessman who had already had run-ins with the tax authorities, who refused to keep any accounting records at all, who would not cooperate with the Minister's officials, who knew or who ought to have known the reason for the hearing before the Court and who had ample time to prepare himself. Had the Applicant requested an adjournment - which he did not do, incidentally - the judge's refusal to grant it to him could not have been subject to judicial review under the circumstances.
[12] The application for judicial review should be dismissed with costs.
"Robert Décary" J.A. "I concur. Gilles Létourneau J.A."
"I concur. Marc Nadon J.A."
Certified true translation
Kelley A. Harvey, BA, BCL, LLB FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-420-02
STYLE OF CAUSE: GUY DIONNE v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: QUÉBEC, QUEBEC
DATE OF HEARING: November 25, 2003
CORAM: DÉCARYJ.A. LÉTOURNEAU J.A. NADONJ.A.
REASONS FOR JUDGMENT DÉCARY J.A. OF THE COURT:
DATE OF REASONS: NOVEMBER 27, 2003
APPEARANCES:
Guy Cavanagh FOR THE APPLICANT
Bernard Fontaine FOR THE RESPONDENT
SOLICITORS OF RECORD:
Cavanagh et Almeida FOR THE APPLICANT New Richmond, Quebec
Department of Justice - Canada FOR THE RESPONDENT Montréal, Quebec |
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