Date: 19980331
Docket: 97-3101-IT-I
BETWEEN:
PAUL DUCLOS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for order
TARDIF J.T.C.C.
[1] I must dispose of the merits of a motion submitted by the respondent asking the Court to dismiss the appeal on the ground that it lacks jurisdiction.
[2] I should first note that it would seem difficult to dismiss an appeal if the Court has no jurisdiction.
[3] At the start of the hearing, the parties asked that the content of paragraph (b) of the Affidavit, alleging that the appellant had filed a Notice of Objection with the Minister of National Revenue on June 25, 1997 against the Notice of Reassessment dated October 15, 1996, be amended, substituting June 10, 1997 for June 25, 1997.
[4] In response to the Notice of Reassessment dated October 15, 1996, the appellant sent a letter (Exhibit A-1) by registered mail, the content of which was as follows:
[TRANSLATION]
Verdun
June 10, 1997
Department of National Revenue
500 Place d'Armes
Bureau 1800
Montréal, Quebec
H2Y 2W2
To whom it may concern:
I wish to serve notice of my objection despite my delay, which is justified personally by my ignorance of the Income Tax Act. I object to the penalty imposed on me on my 1995 taxes, with reference to $2,000 of union leave, made for 1995. I was still waiting on my executive to give me a statement of my leave and as it never did so I filed my tax return without mentioning it. For reference, my social insurance number is 233-312-396.
From Paul Duclos
896 De l'Église
Verdun, Que.
H4G 2N2
[5] On October 8, 1997 Revenue Canada replied in a letter (Exhibit I-2) the content of which was as follows:
[TRANSLATION]
TLA-4(A)
October 8, 1997
Paul Duclos
896 Avenue De l'Église
Verdun, Quebec
H4G 2N5
Montréal District
Office
Appeals Division
Tel.: (514) 283-8004
RE: Notice of Objection postmarked June 10, 1997
The enclosed Notice of Objection cannot be accepted since it was not filed within the time allowed.
The Income Tax Act requires that your objection be served no later than the 90th day after the date your Notice of Assessment (Notice of Determination) was mailed.
However, you may request an extension of time to file your Notice of Objection.
HOW TO PROCEED
Send the undersigned a letter giving the reasons why your objection was not filed within the time allowed.
WHEN
Your request should be made as soon as possible, but no later than one year after the date on which you should have filed your Notice of Objection.
_________________
Chief of Appeals
[6] On October 17, 1997, only a few days after receipt of the letter of October 8, 1997, the appellant filed a Notice of Appeal in this Court (Exhibit I-1) stating the following:
[TRANSLATION]
October 17, 1997
Tax Court of Canada
500 Place d'Armes
Bureau 1800
Montréal, Quebec
H2Y 2W2
(514) 283-9912
Re: Filing of Notice of Appeal
Dear Sir/Madam:
Further to the letter sent on October 8, 1997 (sent by Revenue Canada) informing me of the reply to my appeal, I wish to file in writing my Notice of Appeal under the informal procedure as suggested in the correspondence I received.
The purpose of this letter is therefore to object to the fact that I was obliged to pay a fine on taxes owed in 1995.
I work at the Hôtel-Dieu in Montréal and was a union representative in 1995. Since that time the Syndicat national des Employés généraux was to bring itself "into line" so that union representatives would pay taxes like all workers. Proposals to this effect were made and adopted at several general meetings (Nov. 1992, Sept. 1993, Aug. 1995 and May 1996), which means that the union executive had been given legal instructions to do so. It was not done. It should also be noted that the "parent" of the Syndicat national des Employés généraux de l'Hôtel-Dieu, the CNTU, had also been instructed to ensure that all its unions were brought into line. The CNTU also failed to do this.
I am thus faced with a dispute which has dragged on for a long time and which should have been settled as soon as possible.
Unfortunately, the union executive of the Hôtel-Dieu de Montréal and the CNTU have not done their duty and I am left to suffer the consequences.
This letter therefore means that the fine which I have to pay should be imposed on those really responsible, the Syndicat national des Employés généraux and the CNTU.
Please note that I am prepared to pay my tax assessments for these years. However, I dispute the fine which has been unfairly imposed. I therefore feel I have been unfairly treated by everything that has happened and unfortunately it is always the victim who has to pay . . .
I remain available to answer your questions at any time.
Yours truly,
Paul Duclos
SIN:
[7] The appellant testified and explained the circumstances surrounding the progress of his case. From his testimony I concluded that he did fully intend to use and to exhaust all the means at his disposal to assert the validity of his arguments.
[8] It was also plain from his testimony that he was not familiar with the procedure and that he had relied on representatives of his union confederation. It would certainly have been better for him to consult someone in a position to give him proper information by fully explaining the procedure to be followed. Although relatively straightforward, I think that it might be difficult for a lay person, especially as this is a rather unusual procedure.
[9] Doubtless partly for these reasons, Parliament sought to make the procedure as easy as possible so that taxpayers could assert their rights.
[10] In the instant case, the content of the appellant's letter, though imperfect and possibly incomplete, clearly set out his intention to have his case reviewed, after attempting to justify his delay on grounds of ignorance. That is how I read the following passage from Exhibit A-1:
[TRANSLATION]
To whom it may concern:
I wish to serve notice of my objection despite my delay, which is justified personally by my ignorance of the Income Tax Act.
[11] The respondent had a duty to decide on the merits of the application, namely whether it met the requirements of the Act, but in the circumstances she could not dispose of the case by concluding that it was not a request for a review. Accepting the respondent's reasoning would amount to saying that the respondent could deprive a taxpayer of his or her right of appeal by a decision ruling that the application was not made in proper form.
[12] I consider that the content of the handwritten letter signed by the appellant was certainly not a model of clarity; nevertheless, it expressed a very clear intention to obtain a decision on the merits, after pleading ignorance as the reason for his delay.
[13] In the circumstances, I consider that the respondent had authority to decide to deny him an extension on the ground that ignorance is no excuse; however, she could not decide that the request was not a request for an extension. By reaching this conclusion the respondent made the situation still more complicated for the appellant. Although procedure is fundamental, I think that it should facilitate the assertion of rights, not impede it.
[14] The respondent should simply have concluded that she was not granting an extension, thereby clearly indicating to the appellant that he could appeal the decision.
[15] The respondent criticized the appellant for what she herself had employed: ambiguity. In my opinion, the ambiguity of the Department's letter explains the content of the appellant's letter of October 17.
[16] In the circumstances, I conclude that the letter signed by the appellant on October 17 was a request for review of the respondent's decision communicated by letter dated October 8, 1997 (Exhibit I-2), the effect of which was to deny the extension requested.
[17] The content of the Department's letter is ambiguous. The ambiguity may explain, and indeed justify, the fact that the appellant's notice had to do with the merits rather than the right to a review.
[18] Consequently, I dismiss the respondent's motion to quash the appeal and allow the appellant's oral motion for an extension to entitle him to a review of his case.
[19] Consequently, the Court allows him 60 days to assert his rights to the review office.
Signed at Ottawa, Canada, March 31, 1998.
Alain Tardif
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 14th day of December 1998.
Kathryn Barnard, Revisor