Wendy Ann Eves Curoe v. Minister of National Revenue, 91 DTC 782, [1991] 1 CTC 2513 (TCC)

Christie, A.C.J.T.C.:—By notice of appeal dated January 17, 1990, the appellant appealed from a reassessment by the respondent of her liability under the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act") with reference to the 1987 taxation year. The address for the appellant given in the notice of appeal is 91 Bridlington Road, London, Ontario, N6E 2G6. By notice of hearing dated March 30, 1990, the Registrar informed the appellant that the appeal was scheduled to be heard at London on April 24, 1990. The precise time and place of the hearing is set out in the notice. This document was sent to the appellant by registered mail at the Bridlington Road address, which was and is the appellant's home address.

When the appeal was called for hearing before Deputy Judge Dubienski on April 24, neither the appellant nor anyone representing her was present. In the result, judgment was signed by him on May 22, 1990, dismissing the appeal for want of prosecution. The appellant seeks to have the judgment set aside on the ground that she did not receive the notice of hearing. This motion came on for hearing at London on January 15,1991.

The appellant testified that she did not receive the notice of hearing. A notice that there was registered mail at a postal substation was received by her, and her husband endeavoured unsuccessfully to obtain it. She agreed that the notice about registered mail could have been related to the notice of hearing.

Mr. Curoe testified that early in 1990 a notice to pick up registered mail was received. In the normal course his wife is at home when the mail is delivered but she must have been absent when that registered mail arrived. At any rate he went to the substation which was located in a Shoppers Drug Mart. The person in charge could not locate the letter. Mr. Curoe returned two days later and was informed that the substation at the drug mart was closing down and was being transferred to a 7-Eleven variety store across the street. It was suggested that he inquire there and he did, without result. The substation was just being established in the 7-Eleven and there was a good deal of confusion. He made a further inquiry there, again without result. He returned to the drug mart and was given the name and telephone number of a letter carrier supervisor, but he was unable to help.

The first knowledge that the appellant had about the notice of hearing was after receiving a copy of Judge Dubienski's judgment. Mr. Curoe thereupon communicated with the Deputy Registrar of the Court, Mr. M. Artelle, who informed him about the notice of hearing having been sent by registered mail.

There is no doubt that the appellant did not receive the notice of hearing. Apart from the affirmative credibility of the evidence given at the hearing of the motion, the matter is clinched by the Court file which shows that the unopened envelope containing the notice of hearing was returned by the Post Office to the Court and received by it on May 2, 1990.

It is the contention of counsel for the respondent that this Court is without jurisdiction to set aside the judgment. The argument in support of this made reference to a number of reported cases. The nub of it is that when a judgment of this Court has been drawn up and entered there is no jurisdiction to amend it in the absence of express authority [1] except (i) when there is error in it that is attributable to an accidental slip or omission, or (ii) error has been made in expressing the manifest intention of the Court. But this statement of the law is only applicable to the issue under discussion on the supposition that amending the terms of a judgment and setting it aside are synonymous. This is an assumption that to my mind is invalid.

Counsel for the respondent made it clear, however, that there was considerable sympathy for the appellant's plight and she even suggested that if the appellant sought to appeal the judgment to the Federal Court-Trial Division, no impediment would be raised to that course of action. Nevertheless counsel was of the view that if a court is considered to be without jurisdiction, it is a matter that must be raised. I agree. Judgments or orders rendered without jurisdiction are a nullity and are to be stringently avoided. This is underscored by the inference to be drawn from what was done by the Court in Griffith v. Harwood (1900), 30 S.C.R. 315, [2] and said by Chief Justice Laskin in Novic v. Novic, [1983] 1 S.C.R. 700; 3 D.L.R. (4th) 184, [3] that if a court believes it may be without jurisdiction and this has not been advanced by counsel, the issue should be raised by the court of its own accord.

In my opinion this Court has jurisdiction to set aside a judgment issued ex parte. I regard that this flows from the decision of the Federal Court of Appeal in May & Baker (Canada) Ltd. v. Motor Tanker “Oak”, [1979] 1 F.C. 401; 89 D.L.R. (3d) 692. There a statement of claim had issued out of the Federal Court- Trial Division on October 24,1972. An order of the Trial Division extended the time for service of it until October 22,1974. A further extension of time for service was made on September 30, 1974 until September 30, 1975. Both of these orders were made on ex parte applications. Service was effected on September 9, 1975, and on November 3, 1975, a motion was made in the Trial Division to set aside the service of the statement of claim“ on the grounds that the extensions of time for service . . . were granted without sufficient reason." This application was dismissed on February 24, 1976, and the defendants appealed.

The appeal was allowed. The Court of Appeal found that the material filed in the Trial Division in support of the two orders extending time for service did not reveal any facts that disclosed "sufficient reasons". It was also of the view that the motion in the Trial Division should be treated as a motion for an order to set aside the orders extending the time insofar as necessary to make a consequential order to set aside the service.

Chief Justice Jackett, in delivering the judgment of the Court, said at pages 404-405 (D.L.R. 695):

Generally speaking, when a court makes an order or delivers a judgment, in the absence of special provision, it is without authority to review such order or judgment. Its correctness can only be dealt with on appeal. When, however, an order is made ex parte, in my view, in the absence of something to the contrary, there is an inherent jurisdiction in the Court, after the party adversely affected has been given an opportunity to be heard, if it then appears that the ex parte order or judgment should not have been made

(a) to set aside the ex parte order or judgment as of the time when the order setting aside is made, and

(b) to make such ancillary order as may be necessary to restore the party adversely affected to the position he would have been in if the ex parte order or judgment had not been made.

It follows, in my view, that, in such a case, the party aggrieved is entitled, upon an application to set aside an ex parte order, to obtain such relief, and that the appellant, as such an aggrieved party, should have been granted such relief by the judgment that is the subject matter of this appeal. [4]

While it might be said that strictly speaking Jackett, C.J. was referring to ex parte orders and judgments issued out of the Federal Court-Trial Division, I see no reason why, on principle, what he said does not also apply to the Tax Court of Canada.

The application to set aside the judgment dated May 22, 1990, is granted and the Registrar will be directed to reschedule the hearing of the appeal.

Appeal allowed.