http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/181587/index.do#
Wolsey v. The Queen (October 24, 2016 – 2016 TCC 236, Graham J.).
Précis: Mr. Wolsey filed a tax appeal in 2005 in respect of unreported income for his 2000, 2001 and 2002 taxation years. The file dragged on and the appeal was dismissed in 2014 when he failed to attend a status hearing. He moved to set aside the dismissal on the basis that he was unaware of the status hearing and unaware that his counsel had withdrawn from the record. The Court simply did not believe his evidence and dismissed his motion with costs to the Crown.
Decision: This was a case in which the Court was clearly upset by the conduct of Mr. Wolsey:
[24] In order to have the dismissal set aside Mr. Wolsey needs to provide a reasonable explanation for his non-appearance. In light of all of the foregoing, I find that he has effectively provided no explanation whatsoever. An explanation that is entirely without credibility is hardly different than silence. “My dog ate my homework” is only an explanation if you have a dog.
[25] This is not a case where the taxpayer has provided an explanation and where I must determine whether, in light of all of the circumstances, that explanation is reasonable. Had Mr. Wolsey taken the position that he knew about the status hearing but mistakenly thought that someone (Mr. Virk or Mr. Laird perhaps) was going to attend on his behalf, I would have had an explanation that I could have considered. Had he taken the position that he knew about the status hearing but thought that the worst that would happen if he did not attend is that the Court would set the appeal down for hearing, I would again at least have had an explanation that I could have considered. Had he taken the position that he knew about the status hearing but could not afford to retain counsel and hoped that by not attending the status hearing he could delay the appeal until he was in a financial position to retain someone, I would again at least have had an explanation that I could have considered. I am not saying that I would have necessarily set the dismissal aside in any of these circumstances, but at least I would have had an explanation that I could have weighed in making a decision. Mr. Wolsey has not left me with that option.
Costs were awarded to the Crown with a clear warning to Mr. Wolsey to act reasonably in arriving at a costs award:
[32] Costs are awarded to the Respondent. It is my hope that the parties will be able to agree on costs. In endeavouring to reach an agreement, Mr. Wolsey may wish to bear in mind that my strong impression is that his conduct throughout this Application has unnecessarily lengthened the proceedings. Viewed collectively, the series of unfortunate events that necessitated four adjournments of this matter (each shortly before, on the eve of or during the hearing) begin to take on the appearance of intentional delay and an abuse of the Court’s goodwill. Mr. Wolsey’s surprise attempt to adjourn the hearing a fifth time before me on the morning of the hearing only reinforces that impression. Unless Mr. Wolsey is able to convince me that my impression is wrong, any decision that I am required to issue in respect of costs will reflect that view.