GIUSEPPE MONTANA a.k.a GIUSEPPI MONTANA v. JOE MONTANA, 1585677 ONTARIO LTD. and PRIVATE DISPOSAL, 2017 FCA 194

fDate: 20170921 Dockets: A-315-16 A-316-16 Citation: 2017 FCA 194 CORAM: NADON J.A. STRATAS J.A. WEBB J.A. Docket: A-315-16 BETWEEN: GIUSEPPE MONTANA a.k.a GIUSEPPI MONTANA AND JOE MONTANA, 1585677 ONTARIO LTD. and PRIVATE DISPOSAL SYSTEMS LTD. Appellants and MINISTER OF NATIONAL REVENUE Respondent Docket: A-316-16 AND BETWEEN: LUCA M. CICIARELLI a.k.a LUCA CICARELLI and 1585677 ONTARIO LTD. Appellants and MINISTER OF NATIONAL REVENUE Respondent Heard at Toronto, Ontario, on September 21, 2017. Judgment delivered from the Bench at Toronto, Ontario, on September 21, 2017.

REASONS FOR JUDGMENT OF THE COURT BY: STRATAS J.A. Date: 20170921 Dockets: A-315-16 A-316-16 Citation: 2017 FCA 194 CORAM: NADON J.A. STRATAS J.A. WEBB J.A. Docket: A-315-16 BETWEEN: GIUSEPPE MONTANA a.k.a GIUSEPPI MONTANA AND JOE MONTANA, 1585677 ONTARIO LTD. and PRIVATE DISPOSAL SYSTEMS LTD. Appellants and MINISTER OF NATIONAL REVENUE Respondent Docket: A-316-16

AND BETWEEN: LUCA M. CICIARELLI a.k.a LUCA CICARELLI and 1585677 ONTARIO LTD. Appellants and MINISTER OF NATIONAL REVENUE Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario, on September 21, 2017). STRATAS J.A. [ 1 ] The appellants appeal an order dated August 9, 2016 of the Federal Court ( per Brown J.). In this order, the Federal Court denied the appellants’ request for an adjournment of the respondent’s application.

The respondent applied for an order requiring the appellants to comply with certain requirements issued under the Income Tax Act , R.S.C. 1985, c. 1 (5th Supp.) and the Excise Tax Act , R.S.C. 1985, c. E-15. [ 2 ] Two substantially similar appeals have been brought. These reasons deal with both appeals. A copy of these reasons shall be placed in each appeal file. [ 3 ] The Federal Court’s decision to deny the adjournment was a discretionary one very much based on the facts before it.

It can be set aside only if the Federal Court erred in law or in principle or if it committed palpable and overriding error: Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology , 2016 FCA 215 , [2017] 1 F.C.R. 331, citing Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235. As is well-known, palpable and overriding error is a high standard: Benhaim v. St. Germain , 2016 SCC 48 , [2016] 2 S.C.R. 352, citing Canada v. South Yukon Forest Corporation , 2012 FCA 165 , 4 B.L.R. (5th) 31 at para. 46 and J.G. v.

Nadeau , 2016 QCCA 167 at para. 77 . [ 4 ] The Federal Court identified a number of well-recognized considerations that could support an adjournment.

These included the appellants’ failure to offer evidence in support of their adjournment request, their delay in retaining counsel in circumstances where they could have obtained one earlier, the appellants’ delay in satisfying requirements to produce the required documents, the non- responsiveness of the appellants’ earlier correspondence that was “calculated to delay the Minister’s request,” and the overall delay in the respondent’s application and the need for it to be determined promptly. [ 5 ] In oral argument, the appellants submitted that they were not impugning the Federal Court’s decision on the basis of palpable and overriding error. [ 6 ] In essence, the appellants submitted that because they suffered procedural unfairness on these facts, there was an error of law.

Absent a demonstration of legal error, whether there was procedural unfairness on these facts is a question of mixed fact and law reviewable only on the basis of palpable and overriding error. [ 7 ] During oral argument, the appellants submitted that any time an unrepresented litigant advises the Court that counsel has been retained the Court is bound as a matter of law to adjourn. We disagree.

While in a case like this the retaining of counsel is no doubt deserving of very significant weight and is often determinative, other factors—such as those the Federal Court identified and considered here—also fall for consideration. Whether, on balance, on particular facts, an adjournment should be granted is a question of mixed law and fact reviewable on the ground of palpable and overriding error. Again, the appellants do not argue palpable and overriding error in this case. [ 8 ] The appellants submit that this Court’s decision in Siloch v. Canada (Minister of Employment and Immigration) (1993), 10 Admin.

L.R. (2d) 285, 151 N.R. 76 sets out factors that must be considered whenever a party requests an adjournment. We do not agree that a failure to consider a Siloch factor constitutes an error of law. Rather, the Siloch factors, developed in the immigration context, are a non-exhaustive list of the sorts of factors a judge deciding a case like this may find useful on the facts of the case. [ 9 ] During argument, the appellants noted that the record before the Federal Court was incomplete. On this, the Federal Court noted that the appellants failed to file any affidavit in support of their request for an adjournment.

We are satisfied that the Federal Court had an adequate basis in the material before it and the submissions made to it to decide upon the adjournment request. [ 10 ] The principles governing whether or not an adjournment should be granted are set out in the principles of procedural fairness and the factors in Rule 3 of the Federal Courts Rules , SOR/98-106. [ 11 ] The Federal Court considered the aspects of these principles that were live on the facts of this case and, in doing so, committed no error in law or in legal principle. [ 12 ] We note that the appellants did not challenge the merits of the Federal Court’s granting of the respondent’s application.

In some circumstances, this can render a procedural challenge moot. For this reason, a notice of appeal—the document that defines the scope of an appeal—should be drafted with care. [ 13 ] We also want to make it clear that these reasons do not foreclose the possibility that a denial of the right to counsel by itself in some circumstances can constitute legal error reviewable on correctness.

Given the fact-based and discretionary nature of the Federal Court’s order here and given the appellants’ failure to challenge the Federal Court’s decision on the merits of the application, that is not the case here. [ 14 ] Therefore, for the foregoing reasons, we will dismiss the appeals with costs.

"David Stratas" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Dockets: A-315-16 AND A-316-16 APPEAL FROM AN ORDER OF THE HONOURABLE MR. JUSTICE BROWN DATED AUGUST 9, 2016, DOCKET NOS. T-1148-16 and T-1147-16 DOCKET: A-315-16 STYLE OF CAUSE: GIUSEPPE MONTANA a.k.a GIUSEPPI MONTANA AND JOE MONTANA, 1585677 ONTARIO LTD. and PRIVATE DISPOSAL SYSTEMS LTD. v. MINISTER OF NATIONAL REVENUE AND DOCKET: A-316-16 STYLE OF CAUSE: LUCA M. CICIARELLI, a.k.a LUCA CICARELLI and 1585677 ONTARIO LTD. v.

MINISTER OF NATIONAL REVENUE PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: September 21, 2017 REASONS FOR JUDGMENT OF THE COURT BY: NADON J.A. STRATAS J.A. WEBB J.A. DELIVERED FROM THE BENCH BY: STRATAS J.A. APPEARANCES : Tony De Bartolo For The Appellants Margaret J. Nott For The Respondent SOLICITORS OF RECORD : Tony De Bartolo Mississauga, Ontario For The Appellants

Nathalie G. Drouin Deputy Attorney General of Canada For The Respondent