PATRICK E. NICHOLLS Appellant v. HER MAJESTY THE QUEEN, 2012 FCA 243

Date: 20120920 Docket: A-210-11 Citation: 2012 FCA 243 CORAM: NADON J.A. DAWSON J.A. STRATAS J.A. BETWEEN: PATRICK E. NICHOLLS Appellant and HER MAJESTY THE QUEEN Respondent Heard at Toronto, Ontario, on September 20, 2012. Judgment delivered from the Bench at Toronto, Ontario, on September 20, 2012. REASONS FOR JUDGMENT OF THE COURT BY: DAWSON J.A. Date: 20120920 Docket: A-210-11 Citation: 2012 FCA 243 CORAM: NADON J.A. DAWSON J.A. STRATAS J.A. BETWEEN: PATRICK E. NICHOLLS Appellant and

HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario on September 20, 2012) DAWSON J.A. [1] On June 21, 2010, the appellant, Mr. Nicholls, filed a notice of appeal in the Tax Court of Canada (Tax Court) in respect ofhis income tax assessments for the 1990 to 1995 taxation years. The notice of appeal was treated by the Tax Court as an application toextend the time to file an appeal.

The record before this Court does not show that the appellant made any objection to thischaracterization. [2] A judge of the Tax Court dismissed the application to extend time (2011 TCC 39 , 2011 DTC 1063). No appeal wastaken from this decision, which was a "final judgment" of the Tax Court as that term is defined in subsection 2(1) of the Federal CourtsAct (see Reebok Canada v. Canada (Deputy Minister of National Revenue, Customs and Excise – M.N.R.) (1995), 179 N.R. 300, [1995]F.C.J. No. 220). [3] Instead, the appellant moved for reconsideration of the decision to refuse the extension of time.

A second judge of the TaxCourt (Judge) dismissed the motion for reconsideration (2011 TCC 272, 2011 DTC 1207). This is an appeal from the order dismissingthe motion for reconsideration. [4] The Judge began his analysis by correctly noting that on a motion for reconsideration the party seeking to set aside aprevious order must establish one of two criteria. The first criterion is that the order did not accord with the reasons given in support ofthe order.

The second criterion is that some matter that should have been dealt with in the order was overlooked or accidentally omitted.The Judge went on to find that the appellant had failed to demonstrate the existence of either criterion.

The Judge concluded byexpressing his view that the appellant was "wasting the time of the Court and wasting the time of the Respondent." On this basis theJudge awarded costs against the appellant, fixed in the amount of $1,000 payable forthwith. [5] In our view, the appellant has neither argued nor demonstrated any palpable and overriding error in the Judge's application ofthe legal test for reconsideration to the facts. [6] The appellant argues that the Judge overlooked Rule 4(1) of the Tax Court of Canada Rules (General Procedure), whichrequires the rules to be liberally construed to secure the just, most expeditious and least expensive determination of every proceeding onits merits.

However, Rule 4(1) is a rule of

interpretation which does not create any substantive rights. Accordingly, the Judge did not errby failing to refer to Rule 4(1). [7] The appellant also argues in his written submissions that the Judge denied him procedural fairness by excessivelyintervening in the questioning. Questions of procedural fairness are reviewed by this Court on the correctness standard of review. Thatsaid, the transcript of proceedings before the Judge does not support the appellant's assertion.

In no way can the Judge be said to haveinterfered with the appellant's effective presentation of his case. [8] Finally, the appellant argues in his written submissions that the Judge erred in his award of costs. Cost awards arediscretionary, and this Court can only interfere with such an award if the Judge failed to give weight to all relevant considerations,considered irrelevant factors or erred in law (see Merck & Co. v. Apotex Inc., 2006 FCA 324, 354 N.R. 355 at paragraphs 3 and 4).

Weare all of the view that the appellant has not demonstrated any such error. [9] For these reasons, the appeal will be dismissed with costs.

"Eleanor R. Dawson" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-210-11 AN APPEAL FROM A DECISION OF THE HONOURABLE JUSTICE LITTLE OF THE TAX COURT OF CANADA, DATED MAY 19, 2011 STYLE OF CAUSE: PATRICK E. NICHOLLS V HER MAJESTY THE QUEEN PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: September 20, 2012 REASONS FOR JUDGMENT OF THE COURT BY: Nadon, Dawson & Stratas JJ.A. DELIVERED FROM THE BENCH BY: Dawson J.A. APPEARANCES : Patrick E. Nicholls FOR THE APPELLANT (Self-represented) Thang Trieu Iris Kingston FOR THE RESPONDENT

SOLICITORS OF RECORD : N/A FOR THE APPELLANT (Self-represented) Myles J. Kirvan Deputy Attorney General of Canada FOR THE RESPONDENT