Date: 20000503
Docket: A-493-99
C O R A M: STRAYER J.A.
B E T W E E N:
CYRIL JOSEPH BYRNE
Appellant
" and "
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
STRAYER J.A.
[1] I am going to allow an extension of time for the filing of the notice of application for judicial review to May 5, 2000. The notice attached to the present notice of motion for an extension of time to apply for judicial review (attached pursuant to my specific directions of March 13, 2000) will be filed and deemed to be filed as of May 5, 2000. The applicant is hereby warned that if he does not serve and file his supporting affidavits and documentary exhibits within 30 days of that date he will be in violation of Rule 306 and will incur the risk of his application being dismissed for delay.
[2] As specified in my directions of March 13, 2000 the moving party (applicant) in this motion for an extension will be obliged to pay the costs of this motion although it has been successful. I will fix those costs at $300, to be paid within 30 days of May 5, 2000 and as a condition of the application for judicial review proceeding.
[3] I am making this order for costs because none of the material filed by counsel for the applicant, either prior to my direction of March 13 or on this motion for an extension of time, provides any excuse for his delay in not diligently advancing this matter. It is true that it may be confusing for those not familiar with the Tax Court and the Federal Court to be mistaken as to whether an appeal or an application for judicial review is required in order to challenge a Tax Court decision. On August 9, 1999, counsel for the applicant wrongly filed an appeal in this Court rather than an application for judicial review. But he was advised of his mistake by letters from counsel for the respondent on August 12, 1999 and September 17, 1999. He was served on November 2, 1999 with a copy of a motion by the respondent to dismiss the proceeding for delay and was sent a copy of another letter to the Court from counsel for the respondent dated December 8, 1999 referring to the procedural error. In all this time counsel for the applicant took no step to correct his initial error or to advance the proceedings. Although denying receipt of earlier communications from the respondent (which denial I do not accept) he admits to becoming aware of a direction of this Court of December 16, 1999 referring the December 8 letter to him. Even then he took no action to rectify the matter. It was not until a further direction of the Court of February 21, 2000 that counsel was finally moved to correspond with the Court, some 6 months after he was first sent a letter pointing out his error. His explanations for this delay are unacceptable.
[4] I approach this matter with a strong concern that clients should not lightly be denied their day in court through the failure of counsel to comply with simple procedural requirements. I am satisfied that the applicant evidenced an intent within the time limit to seek a review of the Tax Court decision and I am not persuaded that this intent was abandoned despite the inaction of his counsel. The time elapsed was not so extensive as to alert a reasonable client that something was amiss. I am not satisfied that the application is without merit. Nor does it appear to me that by the nature of the issues the respondent will be prejudiced by this delay. Counsel for the applicant and the applicant must understand, however, that any further failure to meet time requirements will likely lead to dismissal of this application.
[5] In the circumstances I am adjourning sine die Her Majesty's motion for dismissal which the moving party may bring forward with appropriate amendments should the applicant Byrne fail to meet any further time requirements in the application for judicial review. Costs of that motion may be addressed in the final disposition of the application for judicial review.
(s) "B.L. Strayer"
J.A.