http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/224049/index.do
Wolsey v. The Queen (March 2, 2017 – 2017 TCC 34, Graham J.).
Précis: Mr. Wolsey’s appeal was dismissed for failure to appear at a status hearing. He moved to set aside that dismissal and the motion was heard over a period of 4 days (August 23 and 24 and September 15 and 16, 2016) and dismissed on October 24, 2016. The Court asked for submissions on costs. Mr. Wolsey did not make any submissions. The Crown asked for costs equal to twice the Tariff plus disbursements. After reserving for several months Justice Graham awarded the Crown what it had asked for, $19,689.
Decision: Justice Graham goes through a laundry list of the relevant considerations under the Tx Court of Canada Rules (General Procedure). Although he discounts his annoyance at the underlying conduct of the taxpayer it is quite clear that annoyance is the major factor behind this decision:
[11] As I stated in my Reasons for Judgment, “my strong impression is that [Mr. Wolsey’s] 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.” As Mr. Wolsey has not made any written submissions on costs, nothing has changed my impression of his conduct.
[12] While I am not awarding costs in respect of Mr. Wolsey’s conduct during the underlying appeal, that conduct does shape my view of his conduct during the application. It strongly reinforces my impression that Mr. Wolsey was intentionally delaying the application. As I observed in my Reasons for Judgment, everything about Mr. Wolsey's conduct both during the appeal and the application “screams not of someone who desperately wants to resolve his tax problem, but rather of someone who desperately wants to delay resolving it. Mr. Wolsey has regularly ignored Court-ordered deadlines, has failed to apply to extend those deadlines until forced to do so by either the Court or the Respondent and, both before and after the October 9 status hearing, has failed to provide the Court and his counsel with his correct contact information.”
[13] The hearing of the application lasted four days. This is an extraordinary amount of time for the hearing of an application to set aside a dismissal for failure to appear. In my experience, such applications are generally dealt with in a half day or, at most, a day.
[14] Mr. Wolsey’s counsel was appointed in May 2016. Counsel advised the Court that Mr. Wolsey gave him no instructions between May and the first day of the hearing of the application in late August. While Mr. Wolsey’s counsel represented Mr. Wolsey very professionally in the four days of hearing that followed, counsel could not help but be unprepared due to his client’s lack of communication. In turn, that lack of preparation could not help but extend the duration of the proceedings. The responsibility for that lack of preparation falls squarely on Mr. Wolsey.
[15] Based on all of the foregoing, I find that Mr. Wolsey’s conduct significantly affected the duration of the proceedings.
[Footnotes omitted]
After reserving for several months Justice Graham awarded the Crown what it had asked for, $19,689.