Virdi v. Canada (Minister of National Revenue)
The appeal is dismissed because the appellant, as the moving party, failed to meet the burden to justify an extension of time by not swearing his own affidavit that could be cross-examined; the trial judge did not err in exercising his discretion to dismiss the motion.
Source-derived case information.
- Citation
- 2006 FCA 38
- Parties
- Appellant: Jasvir Singh Virdi; Respondent: Minister of National Revenue
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 30 January 2006
- Procedural Posture
- Administrative Law Judicial Review (tax) / Appeal to Federal Court of Appeal From Order Dismissing Motion for Extension of Time (april 19, 2005)
- Outcome
- Appeal dismissed with costs; order below affirmed.
- Legal Topics
- Extension of Time, Motion Procedure, Burden of Proof, Affidavit Evidence, Judicial Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jasvir Singh Virdi
Appellant
Minister of National Revenue
Respondent
Procedural Posture
Administrative Law Judicial Review (tax) / Appeal to Federal Court of Appeal From Order Dismissing Motion for Extension of Time (april 19, 2005)
Legal Issues
- 1 Whether the judge erred in refusing an extension of time to seek judicial review
- 2 Whether a moving party must swear his own affidavit that can be cross-examined to establish the elements for an extension of time
- 3 Whether an affidavit sworn by counsel's secretary is sufficient to discharge the moving party's burden
Ratio Decidendi
The appeal is dismissed because the appellant, as the moving party, failed to meet the burden to justify an extension of time by not swearing his own affidavit that could be cross-examined; the trial judge did not err in exercising his discretion to dismiss the motion.
Court Disposition
Appeal dismissed with costs; order below affirmed.
Orders
- Appeal dismissed with costs.
- Order of the Honourable Mr. Justice von Finckenstein dated April 19, 2005 affirmed.
Full Case Text
Judgment text and source record
1 paragraphs
Virdi v. Canada (Minister of National Revenue) Court (s) Database Federal Court of Appeal Decisions Date 2006-01-30 Neutral citation 2006 FCA 38 File numbers A-195-05 Decision Content Date: 20060130 Docket: A-195-05 Citation: 2006 FCA 38 CORAM: DESJARDINS J.A. DÉCARY J.A. SEXTON J.A. BETWEEN: JASVIR SINGH VIRDI Appellant and MINISTER OF NATIONAL REVENUE Respondent Heard at Vancouver, British Columbia, on January 30, 2006. Judgment delivered from the Bench at Vancouver, British Columbia, on January 30, 2006. REASONS FOR JUDGMENT OF THE COURT BY: DÉCARY J.A. Date: 20060130 Docket: A-195-05 Citation: 2006 FCA 38 CORAM: DESJARDINS J.A. DÉCARY J.A. SEXTON J.A. BETWEEN: JASVIR SINGH VIRDI Appellant and MINISTER OF NATIONAL REVENUE Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Vancouver, British Columbia, on January 30, 2006) DÉCARY J.A. [1] We have not been persuaded that Mr. Justice von Finckenstein made any reviewable error in the exercise of his discretion when he dismissed the appellant's motion for an extension of time (2005 FC 529). [2] As the moving party, the appellant bore the burden of establishing the elements necessary for an extension of time. Generally speaking, this must be done by affidavit evidence sworn by the moving party himself that can be subject to cross-examination. [3] In the case at bar, the appellant did not see fit to swear his own affidavit. Instead, he asks the Court to find that he had a reasonable explanation for his delay, a continuing intention to seek judicial review and an arguable case solely on the basis of an affidavit sworn by his lawyer's secretary. This failure to provide his own evidence to the Court was, in this case, fatal to his motion. [4] This appeal will be dismissed with costs. (Sgd.) "Robert Décary" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-195-05 (APPEAL FROM AN ORDER OF THE HONOURABLE MR. JUSTICE von FINCKENSTEIN DATED APRIL 19th 2005 STYLE OF CAUSE: Jasvir Singh Virdi v Minister of National Revenue PLACE OF HEARING: Vancouver BC DATE OF HEARING: January 30th 2006 REASONS FOR JUDGMENT OF THE COURT: Desjardins J.A. Décary J.A. Sexton J.A. DELIVERED FROM THE BENCH BY: Décary J.A. APPEARANCES: Michael Klein FOR THE APPELLANT Jan Brongers FOR THE RESPONDENT SOLICITORS OF RECORD: Barrister & Solicitor Vancouver BC FOR THE APPELLANT John H. Sims, Q.C. Deputy Attorney General of Canada FOR THE RESPONDENT