L. R. Vivian Associates Ltd. v. Canada
The appeal was dismissed because the appellant, despite being aware of Judge Rowe's order to retain counsel, failed to take credible steps to do so; the trial judge did not err in exercising discretion to dismiss and the Federal Court of Appeal declined to disturb that exercise of discretion.
Source-derived case information.
- Citation
- 2002 FCA 176
- Parties
- Appellant: L.R. Vivian Associates Limited; Respondent: Her Majesty the Queen
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 7 May 2002
- Procedural Posture
- Tax Assessment Appeal / Appeal to the Federal Court of Appeal From the Tax Court of Canada
- Outcome
- Appeal dismissed with costs
- Legal Topics
- Tax Assessment, Procedural Dismissal for Failure to Prosecute, Failure to Retain Counsel, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
L.R. Vivian Associates Limited
Appellant
Her Majesty the Queen
Respondent
Procedural Posture
Tax Assessment Appeal / Appeal to the Federal Court of Appeal From the Tax Court of Canada
Legal Issues
- 1 Whether the Tax Court judge erred in dismissing the appellant's appeals for failure to retain counsel
- 2 Whether a less drastic remedy should have been imposed for the appellant's failure to retain counsel
- 3 Whether the appellant's steps to retain counsel were reasonable given Judge Rowe's prior order
Ratio Decidendi
The appeal was dismissed because the appellant, despite being aware of Judge Rowe's order to retain counsel, failed to take credible steps to do so; the trial judge did not err in exercising discretion to dismiss and the Federal Court of Appeal declined to disturb that exercise of discretion.
Court Disposition
Appeal dismissed with costs
Orders
- Appeal dismissed.
- Costs awarded to the Respondent.
Full Case Text
Judgment text and source record
1 paragraphs
L. R. Vivian Associates Ltd. v. Canada Court (s) Database Federal Court of Appeal Decisions Date 2002-05-07 Neutral citation 2002 FCA 176 File numbers A-119-01 Decision Content Date: 20020507 Docket: A-119-01 Neutral citation: 2002 FCA 176 CORAM: LINDEN J.A. EVANS J.A. MALONE J.A. BETWEEN: L.R. VIVIAN ASSOCIATES LIMITED Appellant - and - HER MAJESTY THE QUEEN Respondent Heard at Toronto, Ontario, on Monday, May 6, 2002. Judgment delivered from the Bench at Toronto, Ontario on Monday, May 6, 2002. REASONS FOR JUDGMENT OF THE COURT BY: MALONE J.A. Date: 20020507 Docket: A-119-01 Neutral citation: 2002 FCA 176 CORAM: LINDEN J.A. EVANS J.A. MALONE J.A. BETWEEN: L.R. VIVIAN ASSOCIATES LIMITED Appellant - and - HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario on Monday, May 6, 2002) MALONE J.A. [1] This is an appeal by L.R. Vivian Associates Limited ("the appellant") from an order of Judge Beaubier of the Tax Court of Canada ("the Judge") dated February 14th, 2001, wherein the Judge dismissed the appellant's appeals from assessments made by the Minister for its 1992 and 1994 taxation years. The Minister had brought a motion returnable on February 7th, 2001 for an order either dismissing the appeal, or directing the appellant to retain counsel by February 12th, 2001. [2] The appellant now argues that Judge Beaubier failed to give sufficient weight to all relevant considerations and should have imposed a less drastic remedy in dealing with the appellant's failure to retain counsel in a timely way. [3] The record is clear that the appellant knew that it had to retain counsel to prosecute its appeal following Judge Rowe's order dated June 25th, 1999. While it is true that Mr. Vivian was in China, one does not have to be physically present in Canada to retain counsel. [4] In our view, the appellant's feeble attempts to retain counsel demonstrate a cavalier and careless disregard for the Judge Rowe's order. Mr. Vivian knew that the appellant was required to retain counsel, and was aware that its appeal depended on his doing so. No credible steps were taken and the appellant must now bear the consequences. In our analysis, Judge Beaubier's order dismissing the appeal is appropriate when all relevant circumstances are considered including the additional evidence offered on appeal. [5] The appeal is dismissed with costs. "B. Malone" J.A. FEDERAL COURT OF CANADA Names of Counsel and Solicitors of Record DOCKET: A-119-01 STYLE OF CAUSE: L.R. VIVIAN ASSOCIATES LIMITED Appellant - and - HER MAJESTY THE QUEEN Respondent DATE OF HEARING: MONDAY, MAY 6, 2002 PLACE OF HEARING: TORONTO, ONTARIO REASONS FOR JUDGMENT OF THE COURT BY: MALONE J.A. DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON MONDAY, MAY 6, 2002. APPEARANCES BY: Mr. David Rose For the Appellant Mr. Franco Calabrese For the Respondent SOLICITORS OF RECORD: NEUBERGER ROSE LLP Barristers & Solicitors 1392 Eglinton Avenue West Toronto, Ontario M6C 2e4 For the Appellant Morris Rosenberg Deputy Attorney General of Canada For the Respondent FEDERAL COURT OF APPEAL Date: 20020507 Docket: A-119-01 BETWEEN: L.R. VIVIAN ASSOCIATES LIMITED Appellant - and - HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT OF THE COURT