http://decisions.fca-caf.gc.ca/site/fca-caf/decisions/en/item/63429/index.do 
Roper v. Canada[1] (October 16, 2013) is a decision of the Federal Court of Appeal affirming a decision of the Tax Court that struck the appellant’s tax appeal because of his failure to comply with a costs order within the time stipulated by the Tax Court.
The decision of the tax court:
http://decision.tcc-cci.gc.ca/site/tcc-cci/decisions/en/item/30803/index.do
sets out the convoluted history of the underlying tax appeal. There were multiple appearances before various Tax Court judges over a period of three years. There were three separate costs awards against the appellant totalling $10,000. The last such award, dated February 21, 2012 provided in part:
6. if the costs [from all three awards] are not paid on or before March 16, 2012, the appeal shall be dismissed on application by the respondent with a supporting affidavit.
The costs were not paid by March 16, 2012 and the Crown brought a motion to dismiss the appeal. Prior to the hearing of the Crown’s motion the appellant paid the outstanding costs. The Tax Court nevertheless dismissed the appeal:
[16] During the hearing of this motion it became clear that the Appellant is encountering severe financial difficulties and has been experiencing such difficulties for some time. He does not have a house, a car, any savings or any tangible assets. He was evicted from the condominium that he was renting. He moved to another condominium in the same building (that he is also renting) and is in arrears for the payment of rent for this unit. He has lost staff at his law practice because of his inability to pay his debts. Although it is not clear when his financial problems began it appears that at least since October of 2011 he has been unable to pay his debts as they become due. He tried to borrow the $10,000 from family members to pay the costs that were to be paid by March 16, 2012 but was unable to do so. He eventually was able to borrow the $10,000 in a private transaction.
[17] Prior to this motion, there does not appear to have been any indication by the Appellant that he was experiencing severe financial problems. At the hearing on February 16, 2012 (following which the Order dated February 21, 2012 was issued requiring him to pay the $10,000 in outstanding costs by March 16, 2012) there was no indication by the Appellant that he would not be able to pay the $10,000 by March 16, 2012.
[18] It is too late at a hearing, following the failure of the Appellant to pay the $10,000 by March 16, 2012, for the Appellant, for the first time, to raise the issue of his inability to pay this amount by that date when his financial difficulties began several months before he was ordered to pay this amount. The Appellant is a lawyer and therefore would understand clearly the consequences of failing to comply with a clear order of this Court. The Order of Justice Jorré is clear that the Appeal would be dismissed if the Appellant did not pay the outstanding cost awards of $10,000 by March 16, 2012. The Appellant did not pay this amount by March 16, 2012 and therefore as provided in the Order of Justice Jorré, his appeal is dismissed.
[Extract from the Tax Court decision.]
On appeal the Federal Court of Appeal affirmed the decision of the Tax Court:
[5] We are not persuaded that the Judge made any error in exercising his discretion to dismiss Mr Roper’s appeal that would warrant the intervention of this Court. The Judge neither committed an error of law, nor misapprehended the facts, nor exercised his discretion on the basis of an unreasonable weighing of relevant considerations.
[6] Mr Roper argued that, unlike, for example, Ontario’s Superior Court of Justice, the Tax Court may not dismiss an appeal on the ground that the appellant has failed to comply with an Order of the Court because there is no provision to this effect in the Tax Court of Canada Rules (General Procedure), SOR/90-688a (Rules). He says that the silence of the Rules on this issue is particularly significant since section 64 of the Rules expressly provides for the dismissal of an appeal for delay.
[7] We do not agree. Like other courts, the Tax Court has the implied jurisdiction to ensure that its Orders are obeyed and to prevent the abuse of its process: Yacyshyn v. Canada, [1999] 1 C.T.C. 130 (FCA) at para. 12. In an appropriate case, non-compliance with Court Orders may warrant the severe remedy of dismissing an appeal.
[8] Mr Roper also argued that the Judge should have considered the Court’s broad discretion to issue an Order that was just, despite his failure to comply with an Order of the Court. In particular, he said, the Judge should have considered whether dismissing the appeal was necessary for ensuring a just result. Mr Roper told the Judge that he had paid the costs of $10,000 shortly after the date by which the Court, had ordered him to pay them.
[9] It is clear from the Judge’s reasons in this case that in exercising his discretion he took into account Mr Roper’s previous failures to move his appeal forward in a timely fashion and to comply with earlier Orders of the Court. The Judge did not regard himself as bound to grant the Crown’s motion to dismiss the appeal simply because Mr Roper had not complied with the Order of February 21, 2012, even though that Order had stated that the appeal “shall” be dismissed if Mr Roper did not comply with it. It is not a legal error for a judge to fail to expressly mention in his reasons everything that he might have said.
[10] In our view, it cannot reasonably be said that, on the facts before him, the Judge’s dismissal of Mr Roper’s appeal caused a serious injustice requiring our intervention.
Comment: This seems to be a somewhat unusual, and rather harsh, result particularly in view of the fact that the outstanding costs had been paid before the return of the Crown’s motion to dismiss. Basing a decision on the Tax Court’s implied or inherent jurisdiction to control its own processes is not common, even less so where no mention is made of that jurisdiction by the Tax Court. Ultimately one probably has to ascribe this decision to the appellant’s apparent lack of respect for the processes of the Tax Court during the three years of proceedings leading up to the dismissal of his appeal.
This decision is likely an outlier but it does nevertheless point to the fact that taxpayers must treat interlocutory orders with great respect.
[1] 2013 FCA 245.