Flamand v. Minister of National Revenue

[OFFICIAL ENGLISH TRANSLATION]

Date: 20020117

Docket: 1999-2995(EI)

BETWEEN:

CAMIL FLAMAND,

Applicant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

REASONS FOR ORDER

Tardif, J.T.C.C.

[1] This is a motion for revocation of judgment.

[2] The motion was made and filed by letter dated April 26, 2001. The content of the letter is cited below:

[TRANSLATION]

...

We have received a mandate from our client, Camil Flamand, to represent him in this case.

Mr. Flamand was represented by counsel who also represented all the employees of Coopérative forestière Girardville.

Those counsel appealed from the decision of the Human Resources Development Canada officer. A decision dated March 23, 1999, was rendered by Laval Mailloux, Chief of Appeals. As a result of that decision, an appeal was instituted in the Tax Court of Canada.

On December 19, 2000, our client received a letter from counsel for the employees of Coopérative forestière Girardville informing him that they had proceeded with a discontinuance of the appeal. In fact, our client never instructed his counsel to discontinue the appeal.

Since our client has never been able to meet his counsel directly, he has received no explanation regarding the discontinuance. Our client thus believed that his case was still following its course.

Last April 23, our client spoke with an officer of Human Resources Development Canada, Sylvie Mérette, in response to a letter she had sent them. At that time, the officer explained to our client that there had been a discontinuance in the notice of appeal, as a result of which the case was closed and the claim was still valid. Our client never instructed his solicitors to discontinue the case and would have continued the proceedings alone if his solicitors had not wanted to do so.

Consequently, our client asks that the case concerning his application to appeal before the Tax Court of Canada be reopened in view of the fact that he has reasons justifying that request.

Please do not hesitate to contact us for any further information you may require.

...

Annie Desrosiers, lawyer

[3] In response to the motion, the respondent stated his arguments in a letter dated May 31, 2001, which reads as follows:

[TRANSLATION]

SUBJECT: Camil Flamand v. Minister of National Revenue

T.C.C. No.: 1999-2995(EI)

Our File: 3-164919

...

This is further to the motion for revocation of judgment filed by Annie Desrosiers, counsel for Camil Flamand in the above case.

The respondent objects to this motion.

Summary of the Facts

The point at issue in this case was whether Camil Flamand held insurable employment within the meaning of the Unemployment Insurance Act during the week from June 14 to June 20, 1992.

Mr. Flamand filed an application for unemployment insurance benefits supported by a record of employment from Coopérative forestière de Girardville dated November 24, 1992.

Upon investigation, the Minister of National Revenue concluded that he had not worked 11 weeks, but rather 12: the week of June 14 to June 20, 1992, also had to be considered insurable.

As stated by Guylaine Boivin in a letter dated May 10, 2001 (a copy of which was sent to the Court), Mr. Flamand appealed from the minister's decision and gave the solicitors at CAIN LAMARRE CASGRAIN WELLS a mandate to represent him in his case.

Mr. Flamand's case was similar to that of 49 other workers of the Coopérative forestière de Girardville. All the appeals were to proceed together at Dolbeau. Two consecutive weeks of hearings were scheduled for that purpose.

The documentary evidence and Mr. Flamand's statutory declaration made it possible to conclude that he had actually worked during the week from June 14 to June 20, 1992. As previously stated in Guylaine Boivin's letter, Mr. Flamand had admitted working during that week and not reporting it in order to bank it and increase the number of weeks of "stamps". The documentary evidence also showed that he had paid board that week to stay at the logging camp.

Following numerous discussions and two meetings between counsel for Mr. Flamand and counsel for the respondent, Mr. Flamand filed a discontinuance of the appeal with the Court on December 7, 2000.

As stated in Mr. Flamand's motion, on December 19, 2000, he received copies of the discontinuance and the letter from the Court addressed to his counsel. In that letter, the Court stated that, since the notice of discontinuance had been filed, "this case is now closed."

It was not until April 23, 2001, upon receiving a letter from Human Resources Development Canada (possibly to collect unemployment insurance benefit overpayments) that Mr. Flamand gave Ms. Desrosiers the mandate to file this application.

Reasons for Objection to Motion

The respondent objects to this motion mainly for the following reasons.

First, Mr. Flamand has not demonstrated that he was diligent in handling his appeal. On the contrary, his failure to act upon receipt of the letter from his counsel and letter from the Court stating that, as a result of the discontinuance, his file was considered closed, instead demonstrates negligence on his part. It was not until four months later that he decided to take steps to act on the correspondence from his counsel.

Second, Mr. Flamand must bring prima facie evidence that, if the Court set aside its decision and a hearing were held, the result might be different, which he did not do. He did not show that there was a chance he might succeed.

Conclusion

In conclusion, the respondent requests that this Court dismiss Mr. Flamand's motion for revocation of judgment.

In the alternative, should the Court not wish to dismiss the motion on the basis of the written comments of the parties, the respondent requests that a hearing of the motion be held so that helpful witnesses may be heard, more particularly, the counsel representing Mr. Flamand.

...

[4] In the proceedings, the applicant was represented by a lawyer who was also acting for several tens of other workers employed by the same employer, Coopérative forestière de Girardville.

[5] In light of the administrative complexity of managing such a large number of cases for the lawyers acting as counsel, the employer that had given the mandate to the counsel in question had also set up a genuine communication structure.

[6] The person responsible for communications testified and explained that she had acted as an intermediary and interpretive officer for each of the cases. In that capacity, she met with the applicant to explain the status of his case, the chances of settlement and, lastly, counsel's intention to file a discontinuance in the case involving him. The discontinuance was in fact filed on

December 7, 2000.

[7] As a result of the meeting, the file went forward as the applicant had been told and a discontinuance was filed. The discontinuance, of which the applicant received a copy on December 19, 2000, resulted in a claim with which he completely disagreed. It was not until April 23, 2001, that he decided to institute proceedings for leave to be heard by the court. In support of his claims, he filed an affidavit stating inter alia:

[TRANSLATION]

...

I, the undersigned, CAMIL FLAMAND, domiciled and residing at 4006 du Héron Bleu in St-Félicien, district of Roberval, solemnly declare the following:

1. I am the applicant in this case;

2. In this case, I was represented by counsel who at the same time were representing all the employees of Coopérative forestière Girardville;

3. Those counsel were appealing from the decision by the Human Resources Development Canada officer;

4. On March 23, 1999, a decision was then rendered by Laval Mailloux, Chief of Appeals;

5. As a result of that decision, an appeal was instituted in the Tax Court of Canada;

6. On December 19, 2000, I received a letter from counsel for the employees of Coopérative forestière Girardville informing me that they had proceeded with a discontinuance of the appeal;

7. I never gave those counsel a mandate to discontinue the appeal;

8. I was never able to meet my counsel directly;

9. Since I was given no explanation with respect to the discontinuance, I believed that my case was following its course;

10. Last April 23, I spoke with a Human Resources Development Canada officer, Sylvie Mérette, in response to a letter that she had sent me. She explained to me that there had been a discontinuance in the application for appeal, as a result of which the case was closed and the claim was still valid;

11. I never gave my counsel a mandate to discontinue the case, and I would have continued the proceedings on my own if my counsel had not wanted to pursue the case;

12. I ask that my case be reopened with respect to my application to the Tax Court of Canada in view of the fact that there are reasons justifying this application;

13. All the facts alleged in this affidavit are true to the best of my knowledge.

Roberval, May 17, 2001

CAMIL FLAMAND

Applicant

...

[8] The circumstances of the decision to file a discontinuance are quite unclear. The applicant alleges the following facts in paragraphs 7, 8 and 9 of his affidavit:

7. I never gave those counsel a mandate to discontinue the appeal;

8. I was never able to meet my counsel directly;

9. Since I was given no explanation with respect to the discontinuance, I believed that my case was following its course;

[9] Furthermore, the evidence revealed that in addition to a lawyer, the employer had mandated a person to be responsible for following up on the cases but especially for ensuring that the interested parties, including the applicant, knew what was happening with their respective cases, particularly during the period preceding the settlement.

[10] Mr. Flamand was not very clear on this fundamental aspect; he was clearly more concerned about the consequences of the judgment than about the facts and proceedings that preceded it.

[11] Having regard to the evidence, I believe that the applicant at least tacitly consented to the filing of a discontinuance. The long delay between the moment he received the copy of the discontinuance and the decision to file a motion for revocation of judgment is quite revealing. This ground alone is sufficient to dismiss the motion.

[12] Even if he had acted diligently, in order to succeed, he had to show that not only had his rights been violated but also that he had been deprived of the right to present arguments of fact and law that might call for a different judgment.

[13] Not only did the applicant not bring evidence to this effect, it appears, on the contrary that the basis of the determination in appeal was as decisive as a written admission in a statutory declaration.

[14] The basis of the motion for revocation of judgment stems from the claim subsequent to the judgment.

[15] The applicant did not show that his motion was valid by bringing evidence that he had acted diligently and especially that he had at least a prima facie case to make, and the motion must be dismissed.

Signed at Ottawa, Canada, this 17^th day of January 2002.

Alain Tardif

J.T.C.C.

Translation certified true

on this 8^th day of April 2003

Sophie Debbané, Revisor