Madere c. La Reine

Madere c. La Reine

The Court set aside the default judgment because the applicant demonstrated a continuous intention to pursue the appeal, presented a prima facie defendable case based on competing property valuations, provided a reasonable explanation for the delay (counsel's good faith settlement efforts after discovering new valuation evidence) and the respondent suffered no prejudice from the delay; accordingly the Court exercised its discretion under Rule 140(2) (as informed by Tomas and Farrow) to annul the December 16, 2011 judgment and reinstate the appeal with specified procedural directions.

Citation
2012 CCI 297
Parties
Applicant / Requérante: Rita Madère; Respondent / Intimée: Her Majesty the Queen (Sa Majesté la Reine)
Court
Tax Court of Canada
Jurisdiction
Canada
Judgment Date
27 August 2012
Procedural Posture
Tax Appeal Under Income Tax Act (s.160) and Excise Tax Act (gst) (s.325) / Application to Set Aside Default Judgment; Motion Granted and Appeal Reinstated; Interim Procedural Orders Issued
Outcome
Application to annul default judgment granted; default judgment of Dec 16, 2011 annulled; appeal 2010-122(IT)G reinstated.
Legal Topics
Set Aside Default Judgment, Reinstatement of Appeal, Extensions of Time, Undertakings / Responses to Engagements, Valuation of Property for Tax Purposes, Joinder and Common Evidence Hearings
Source Language
French
Income Tax Law Excise Tax (gst) Law Court Procedure / Civil Procedure Set Aside Default Judgment Reinstatement of Appeal Extensions of Time Undertakings / Responses to Engagements Valuation of Property for Tax Purposes +1 more

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Parties

Rita Madère

Applicant / Requérante

Her Majesty the Queen (Sa Majesté la Reine)

Respondent / Intimée

Procedural Posture

Tax Appeal Under Income Tax Act (s.160) and Excise Tax Act (gst) (s.325) / Application to Set Aside Default Judgment; Motion Granted and Appeal Reinstated; Interim Procedural Orders Issued

Legal Issues

  1. 1 Whether a default judgment for failure to appear should be set aside under Rule 140(2) of the Tax Court Rules
  2. 2 Whether the applicant demonstrated a continuing intention to pursue the appeal
  3. 3 Whether the appeal is prima facie defendable on its merits (competing property valuations)

Ratio Decidendi

The Court set aside the default judgment because the applicant demonstrated a continuous intention to pursue the appeal, presented a prima facie defendable case based on competing property valuations, provided a reasonable explanation for the delay (counsel's good faith settlement efforts after discovering new valuation evidence) and the respondent suffered no prejudice from the delay; accordingly the Court exercised its discretion under Rule 140(2) (as informed by Tomas and Farrow) to annul the December 16, 2011 judgment and reinstate the appeal with specified procedural directions.

Court Disposition

Application to annul default judgment granted; default judgment of Dec 16, 2011 annulled; appeal 2010-122(IT)G reinstated.

Orders

  • Annul the judgment of Judge Bédard dated December 16, 2011 rejecting appeal 2010-122(IT)G and reinstate appeal 2010-122(IT)G
  • Extend deadline to provide respondent with responses to undertakings until May 11, 2011 (date responses were provided to respondent)