Date: 20031023
Docket: A-671-02
Citation: 2003 FCA 393
CORAM: DESJARDINS J.A.
DÉCARY J.A.
SHARLOW J.A.
BETWEEN:
JOANNE SCHURMAN
Applicant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Vancouver, British Columbia, on October 22, 2003.
Judgment delivered at Vancouver, British Columbia, on October 23, 2003.
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: DESJARDINS, SHARLOW J.J.A.
Date: 20031023
Docket: A-671-02
Citation: 2003 FCA 393
BETWEEN:
JOANNE SCHURMAN
Applicant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] The applicant, who is self-represented, is seeking judicial review of the decision of a Tax Court Judge who dismissed her appeal in light of her failure to appear for her September 30, 2002 hearing. The Tax Court appeal was governed by the informal procedure rules.
[2] The applicant's appeal in the Tax Court was first scheduled to be heard on February 27, 2002. On February 15, 2002, she requested an adjournment on the basis that she had been called for jury duty. The respondent consented to the adjournment but it was denied. At the hearing on February 27, 2002, the applicant appeared and again sought an adjournment. It was granted and the matter was "scheduled peremptorily" for hearing on September 30, 2002.
[3] On September 23, 2002, the respondent requested an adjournment on the basis, this time, that her mother had suffered a stroke and that the applicant's family was moving from their home on the date of the scheduled hearing. The respondent opposed the adjournment and it was denied.
[4] On September 29, 2002, the night before the scheduled hearing, the applicant, by letter sent by fax at 11:14 p.m., again requested an adjournment. An additional basis she relied on was that in the circumstances "preparing for and presenting [her very good defence] is impossible". On September 30, 2002, the applicant did not appear at the hearing. The Crown made a motion to dismiss the appeal pursuant to subsection 18.21(1) of the Tax Court of Canada Act, which provides that where an appellant does not appear on the day fixed for the hearing, the Court shall, on application by the respondent, order that the appeal be dismissed, unless the Court is of the opinion that circumstances justify an adjournment.
[5] The motion to dismiss was granted by the Tax Court Judge.
[6] It is trite law that the decision as to whether to grant an adjournment is a discretionary decision with which this Court will not intervene unless there are exceptional circumstances. In the case at bar, in view of the history of the case and of the little evidence which was before him, the Tax Court Judge cannot be faulted for having allowed the motion to dismiss. Adjournments are not granted on grounds of sympathy alone and the fact that a person is self-represented, while not irrelevant, will general bear very little weight. As noted by Pelletier J.A. in Wagg v. Canada, [2003] F.C.J. No. 1115, 2003 F.C.A. 303,
[24] The decision to represent oneself is not irrevocable, nor is it trivial. Persons who undertake to represent themselves in matters of the complexity of the Income Tax Act or the Excise Tax Act must assume the responsibility of being ready to proceed when their appeal is called. ...
[25] Putting the matter another way, litigants who choose to represent themselves must accept the consequences of their choice:
[16] Thus, while the Court will take into account the lack of experience and training of the litigant, that litigant must also realize that, implicit in the decision to act as his or her own counsel is the willingness to accept the consequences that may flow from such lack of experience or training.
(Lieb v. Smith, [1994] N.J. No. 199)
[26] While the administrative requirements of the Court system cannot be allowed to stand in the way of a fair hearing, they are not irrelevant considerations when it comes to deciding what is reasonable in the circumstances. It is not in the interests of justice to have judges idle and courtrooms empty so as to permit litigants to do that which they were bound to do before their case was called. This can only lead to delays in deciding cases which are before the Court, lengthens the time that other litigants must wait for their court date, and adds to the cost of operating the court system.
[7] The following words of Hugessen J.A. in Adams v. Canada (Royal Canadian Mounted Police), (1994) 174 N.R. 314 (F.C.A.) are remarkably appropriate in the case at bar:
The day has passed when courts could allow to litigants the luxury of being at their beck and call. Courts are public institutions for the resolution of disputes and cost substantial pubic money. Court congestion and delay is a serious public concern. Parties who launch proceedings at any level with the intention of putting them in a "holding pattern" for their own private purposes may be called to account for their waste and abuse of a public resource. They also risk having those proceedings dismissed.
(p. 317, 318).
[8] At the hearing, the applicant informed the Court that she had been directed by the Tax Court Registry to the judicial review proceeding set out in the Federal Court Act and that she had not been made aware of the availability of the more informal review proceeding set out in subsection 18.21(2) of the Tax Court of Canada Act. We cannot, of course, verify the accuracy of that statement but assuming it to be true, we may regret that a more proper advice was not given but there is nothing we can do to help the applicant.
[9] I would dismiss the application for judicial review, without costs in the circumstances.
(Sgd.) "Robert Décary"
J.A.
"I agree" (Sgd.) "Alice Desjardins"
J.A.
"I agree" (Sgd.) "Karen R. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-671-02
STYLE OF CAUSE: Joanne Schurman v. HMQ
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: October 22, 2003
REASONS FOR JUDGMENT: DÉCARY J.A.
CONCURRED IN BY: DESJARDINS, SHARLOW J.J.A.
DATED: October 23, 2003
APPEARANCES:
|
on her own behalf |
FOR THE APPLICANT |
|
Mr. Thomas Torrie |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
Deputy Attorney General of Canada |
FOR THE RESPONDENT
|
|
|
|