Date: 19981022
Docket: 98-106-UI
BETWEEN:
FLORENT DUMOULIN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
Archambault, J.T.C.C.
[1] The Minister of National Revenue (Minister) has brought a motion to dismiss Florent Dumoulin’s appeal from a decision made by the Minister on October 30, 1997, under the Employment Insurance Act, S.C. 1996, c. 23 (Act). That decision concerned the insurability of employment held by Mr. Dumoulin from October 30, 1996, to April 27, 1997. According to the Minister, Mr. Dumoulin’s appeal is time-barred and moot because the notice of appeal was not filed within the 90-day time limit set out in subsection 103(1) of the Act. Mr. Dumoulin argues that his notice of appeal was filed within the required time, since the prescription period was suspended because the state of his health made it impossible in fact for him to act.
Facts
[2] The evidence revealed the following. By letter dated October 30, 1997, the Minister informed Mr. Dumoulin of his decision on the insurability of Mr. Dumoulin’s employment. A few weeks earlier, on October 5, 1997, Mr. Dumoulin had gone into cardiovascular arrest (CVA), which had led to his immediate hospitalization at the St-Jérôme hospital. The CVA is alleged to have caused complete paralysis on Mr. Dumoulin’s right side as well as speech loss. Mr. Dumoulin stayed in the hospital until November 14, 1997. He was then transferred to a rehabilitation centre in Ste-Thérèse-de-Blainville (the town in which he lives), where he remained until February 14, 1998. As of that date, he carried on with his rehabilitation program but was able to go home at night.
[3] Mr. Dumoulin described the state of his health during the first phase of his hospitalization at the St-Jérôme hospital as follows:
[TRANSLATION]
A. On October 5, I went into CVA.
Q. What does “CVA” refer to?
A. Complete paralysis of the right side, speech and limbs.
Q. And do you remember when you were hospitalized?
A. On October 5, 1997.
Q. And you stayed in the hospital in intensive care, I imagine?
A. Until November 14, 1997.
Q. Until that time, what could you do physically?
A. Absolutely nothing.
Q. What do you mean by that?
A. I wasn’t . . . I couldn’t write, I couldn’t do anything.
Q. Could you speak?
A. Have a conversation like . . . just like this, yes.
Q. Nothing more?
A. No.
[4] Mr. Dumoulin gave the following description of the treatment he received during the second phase of his hospitalization at the rehabilitation centre:
[TRANSLATION]
A. I changed hospitals; they transferred me to a halfway house.
Q. For rehabilitation?
A. Yes. I stayed there seven days a week, like a hospital.
Q. Yes. You were getting treatment so you could move again and learn to speak?
A. I was in physiotherapy, occupational therapy, physiotherapy and speech therapy.
Q. Speech therapy?
A. Yes.
Q. To learn to speak again?
A. Yes.
Q. How was your memory at that point?
A. Well, it was . . . it was like the illness, there was progress, it was improving.
[5] On about January 25 or 26, 1998, following a visit by one of the Minister’s investigators to the rehabilitation centre, Mr. Dumoulin came down himself from the floor where his room was to the centre’s reception desk to drop off an envelope containing his notice of appeal dated December 2, 1997. Someone had typed the notice, and Mr. Dumoulin, with assistance, had signed it using his right hand. A staff member at the centre was supposed to mail the envelope. It was postmarked January 30, 1998 and had been so postmarked at the central post office in Montréal, not the post office in Ste-Thérèse-de-Blainville, where the rehabilitation centre was.
Analysis
[6] The first issue to be decided is whether Mr. Dumoulin’s notice of appeal was filed within the time set out in the Act. It is helpful to recall that this Court has jurisdiction to hear and determine appeals only where an Act of the Parliament of Canada so allows. Subsection 12(1) of the Tax Court of Canada Act, R.S.C. 1985, c. T-2, states the following:
The Court has exclusive original jurisdiction to hear and determine references and appeals to the Court on matters arising under the Canada Pension Plan, the Cultural Property Export and Import Act, the Employment Insurance Act, Part IX of the Excise Tax Act, the Income Tax Act, the Old Age Security Act and the Petroleum and Gas Revenue Tax Act, where references or appeals to the Court are provided for in those Acts.
[Emphasis added.]
[7] Subsection 103(1) of the Act provides that a decision by the Minister under section 91 of the Act may be appealed to this Court within 90 days after the decision is communicated to the person affected. That subsection reads as follows:
103(1) The Commission or a person affected by a decision on an appeal to the Minister under section 91 or 92 may appeal from the decision to the Tax Court of Canada in the prescribed manner within 90 days after the decision is communicated to the person, or within such longer time as the Court may allow on application made to it within those 90 days.
[Emphasis added.]
[8] To determine whether an appeal has been instituted within the 90-day limit, it is important to ascertain when the decision under section 91 of the Act was communicated and when the notice of appeal is deemed to have been filed with the Court.
[9] For the purpose of determining when the Minister’s decision was communicated, Parliament refers in subsection 103(2) of the Act to the Tax Court of Canada Act:
103(2) The determination of the time at which a decision on an appeal to the Minister under section 91 or 92 is communicated to the Commission or to a person shall be made in accordance with the rule, if any, made under paragraph 20(1.1)(h.1) of the Tax Court of Canada Act.
[Emphasis added.]
[10] Paragraph 20(1.1)(h.1) of the Tax Court of Canada Act authorizes the rules committee of this Court to make rules prescribing when the Minister’s decision is communicated to a person:
20(1.1) Without limiting the generality of the foregoing, the rules committee may make rules
. . .
(h.1) prescribing, for the purposes of . . . subsection 103(1) of the Employment Insurance Act, when a determination or a decision on an appeal to the Minister of National Revenue under . . . section 93 of the Employment Insurance Act, as the case may be, is communicated to a person.
[11] Subsections 5(1) and 5(2) of the Tax Court of Canada Rules of Procedure respecting the Employment Insurance Act(Rules respecting the Employment Insurance Act) provide that, where a decision is communicated by mail, the date of communication is the date the decision is mailed. The wording is clear, and there is no need to rely on any rule of statutory interpretation. There is no reference here to the date on which the person affected reads the decision. Moreover, subsection 5(2) of the said rules establishes a presumption that the date the Minister’s decision is mailed is the date specified on the decision:
5(1) An appeal by an appellant from a decision on an appeal to the Minister shall be instituted within the time period set out in subsection 103(1) of the Act which is 90 days after the decision is communicated to the appellant, or within such longer time as the Court may allow on application made to it within those 90 days.
(2) Where a decision referred to in subsection (1) is communicated by mail, the date of communication is the date it is mailed and, in the absence of evidence to the contrary, the date of mailing is the date specified on the decision.
[Emphasis added.]
[12] In a recent decision, Lamarre et al. v. Minister of National Revenue, A-682-97 (May 29, 1998), the Federal Court of Appeal, per Marceau J.A., stated the following about the starting point for the computation of the time limit:
[3] Nor is there any question, under rule 5 of the Tax Court of Canada Rules of Procedure respecting the Unemployment Insurance Act, that the starting point for the 90-day time limit is the date of the decision in cases such as this, where the decision was communicated by mail to the person affected and there is no evidence to suggest that it was not mailed until later.
[Emphasis added.]
[13] In the case at bar, the date on which the Minister’s decision was mailed was not contested before this Court. The date the decision was communicated is therefore October 30, 1997, which is the date specified on the decision. The doctrine of receipt often applied in tax matters and put forward by counsel for Mr. Dumoulin, namely that it is necessary that the person affected have received the Minister’s decision, is not applicable here. In any event, the fact that Mr. Dumoulin signed a notice of appeal dated December 2, 1997, that is, a month after the Minister’s decision was mailed, confirms that he did in fact receive it.
[14] It must still be determined when Mr. Dumoulin’s notice of appeal was filed with this Court. Subsection 103(1) of the Act states that a person may appeal to this Court “in the prescribed manner”. The rules for determining when a notice of appeal is considered to have been filed with the Court are to be found in subsections 5(5) and 5(6) of the Rules respecting the Employment Insurance Act:
5(5) An appeal shall be instituted by filing in, or mailing to, a Registry the original of the written appeal referred to in subsection (1).
(6) If an appeal is instituted by mail, the date that the appeal is instituted is the date stamped on the envelope at the post office and, if there is more than one such date, the date of instituting the appeal shall be deemed to be the earliest date.
[Emphasis added.]
[15] The evidence showed that the date stamped on the envelope was January 30, 1998, in other words, the 92nd day after October 30, 1997.
[16] In Lamarre, supra, the Federal Court of Appeal confirmed that the time limit set out in subsection 70(1) of the Unemployment Insurance Act (now subsection 103(1) of the Act) was a strict time limit that the Tax Court of Canada could not extend other than by granting an extension before time had run out.[1] Since Mr. Dumoulin did not file his notice of appeal within 90 days after the Minister’s decision and as no application for an extension of time was made to this Court within that time, his notice of appeal was not filed with the Court within the time limit set out in subsection 103(1) of the Act.
[17] Counsel for Mr. Dumoulin did not dispute the fact that the Minister’s decision was mailed on October 30, 1997, and that the notice of appeal was filed with the Court on January 30, 1998. However, they argued that the starting point for computing the time limit was November 14, 1997, the date Mr. Dumoulin was transferred to a rehabilitation centre in Ste-Thérèse-de-Blainville.
[18] In their written submission, counsel for Mr. Dumoulin summarized the facts as follows:
[TRANSLATION]
4. On October 5, 1997, Florent Dumoulin went into cardiovascular arrest, which led to his immediate hospitalization in intensive care and caused complete paralysis on his right side. It is common knowledge that such an incident is a major disaster for both the individual concerned and his family and results in the individual being totally unable to function.
5. Thus, for the entire period from October 5 to November 14, 1997, Florent Dumoulin was in intensive care at the St-Jérôme hospital. He had only a very limited awareness of the events going on around him and was totally unable to move or even to speak.1
6. He was subsequently transferred to the Drapeau-Deschambeau halfway house and rehabilitation centre in Ste-Thérèse, where he stayed for the entire period from November 14, 1997, to February 14, 1998.
____________________
1 The respondent has admitted these facts without requiring medical certificates to be filed.
[19] In support of their arguments, counsel for Mr. Dumoulin relied on article 2904 of the Civil Code of Québec (C.C.), which reads as follows:
Art. 2904. Prescription does not run against persons if it is impossible in fact for them to act by themselves or to be represented by others.
[20] Counsel submitted that “the fundamental issue in this case is whether it is legally tenable to argue that a prescription period can be set up against an unconscious person who, having no knowledge that a decision has been sent to him, cannot assert his rights”.[2] They argued that this Court has jurisdiction to hear and determine Mr. Dumoulin’s appeal because Revenue Canada’s decision, which is the starting point of the time period for appealing to this Court, could not be validly communicated to Mr. Dumoulin while he was in intensive care. They further argued that “it is common knowledge that such an incident is a major disaster for the individual concerned and results in the individual being totally unable to function within the meaning of article 2904 C.C.Q.”[3]
[21] In support of their argument that this Court should apply the Civil Code’s provisions on prescription to compute the time limit for appealing set out in section 103 of the Act, counsel referred to Rule 4 of the Federal Court Rules, which expressly states that, where any matter arises not otherwise provided for by any provision in any Act of the Parliament of Canada or by any general rule or order of that Court, the practice and procedure may be determined by the Court by analogy to the practice and procedure in force for similar proceedings in the courts of that province to which the subject matter of the proceedings most particularly relates. I must observe that that rule is not applicable to appeals heard by the Tax Court of Canada and that there is no similar rule in the Rules respecting the Employment Insurance Act.[4]
[22] Since there is no rule in the Act, the Tax Court of Canada Act or the Rules respecting the Employment Insurance Act, counsel for Mr. Dumoulin argued that the rules of prescription in the Civil Code of Québec should apply on a suppletive basis because “the Civil Code lays down the jus commune applicable in Quebec”.[5]
[23] I am by no means convinced that, in a case such as that provided for in section 103 of the Act, the rules in question can apply on a suppletive basis to the computation of the time limit that a person must meet in order to contest a decision by the Minister. To begin with, among the authorities cited by counsel for Mr. Dumoulin in their written submission, I note the comments made by Gonthier J. of the Supreme Court of Canada in Doré v. Verdun (City), [1997] 2 S.C.R. 862, at page 874:
The Civil Code of Québec sets out a number of guiding legal principles. According to the preliminary provision, the Code is also the foundation of all other laws dealing with matters to which the Code relates, although such laws may complement the Code or make exceptions to it. It is therefore the foundation of all statutes that draw mainly or incidentally on civil law concepts. It is also applicable to the aspects of legal persons established in the public interest that come under the Civil Code.
[Emphasis added.]
[24] There are also the following comments by Professor Côté, which were quoted by the Quebec Court of Appeal in Industrielle-Alliance (L’), Compagnie d’assurance sur la vie v. Québec (Sous-ministre du Revenu), [1997] R.J.Q. 2928 (C.A.):
[TRANSLATION]
The Code is the “foundation of all other laws” in private law; it therefore by its nature provides answers to private law questions that are not resolved by special legislation. The extension of the Code’s rules by analogy is thus an invaluable resource for legal practitioners in Quebec, although it is a resource that they have tended to ignore in the past.
[Emphasis added.]
It is important to note the limited scope of these comments: the Civil Code is the jus commune for matters that come under the civil law. The case at bar falls under public law. It involves the application of legislation passed by the Parliament of Canada that establishes a government benefits scheme for people who have temporarily lost their jobs. It does not involve a civil law matter, such as an action in damages brought by an employee against his employer or a case in which it falls to be determined whether there is a “contract of employment” between such persons.[6]
[25] I also do not consider it necessary or appropriate to apply article 2904 C.C., since Parliament has already set out the procedure to be followed if an affected person would like to have the time limit for appealing extended. Subsection 103(1) of the Act provides that a person who requires additional time can apply to this Court for an extension.
[26] If Mr. Dumoulin needed an additional 15 days because of his CVA, he could have applied for it, and I am convinced that he would have obtained it. Mr. Dumoulin never applied for such an extension, and it was too late to do so on May 1, 1998, when this motion to dismiss the appeal was brought. In any event, it does not seem that such an application needed to be made, since a notice of appeal was prepared about a month after the Minister’s decision was sent, that is, on December 2, 1997, if we are to go by the date on that notice of appeal.[7] The failure to file the notice of appeal within the time set out in the Act could have been due more to negligence than to the problems caused by the CVA.
[27] Finally, it should also be asked whether something as fundamental as the existence of a right of appeal created by a federal statute can be dependent on the application of provincial legislation, which may differ depending on the province where the person affected lives. In such a case, it would be unfair that all Canadians would not be treated the same. Absent clear legislation to this effect, I consider it unacceptable that the exercise of a right of appeal created by a federal statute should be dependent on provincial law.
[28] In any event, it is not necessary to decide all of these questions here. Even if counsel for Mr. Dumoulin were right in arguing that the Civil Code’s provisions must apply on a suppletive basis, I think that the prescription of the time limit should not be suspended in the circumstances of this appeal and I say this for two reasons; the first, and in my opinion the most important, is factual, while the second is legal.
[29] Contrary to what counsel for Mr. Dumoulin argued, the evidence adduced before me does not show that Mr. Dumoulin was an “unconscious person” or that he was “totally unable . . . to act by himself or by being represented by others” during the period from October 5 to November 14, 1997. What was Mr. Dumoulin’s condition on October 30, 1997, the relevant date for determining whether the time for appealing had begun to run? As counsel for the Minister rightly pointed out, the Minister did not admit that Mr. Dumoulin “had only a very limited awareness of the events going on around him and was totally unable to move or even to speak”. He simply allowed Mr. Dumoulin to be questioned about his health without his medical record having to be filed.
[30] We know for a certainty that Mr. Dumoulin went into CVA on October 5, 1997, 25 days before the relevant date. On October 5, 1997, his right side was paralyzed. The evidence on the state of his health between October 5 and October 30, 1997, is not clear. Mr. Dumoulin contradicted himself in describing his condition. At one point, he said that he had “complete paralysis of the right side, speech and limbs”. He added that he could not do anything physically: “I couldn’t write, I couldn’t do anything”. Immediately after that, he answered the question “Could you speak?” as follows: “Have a conversation . . . just like this, yes”.
[31] As well, he did not say that he remained in intensive care until November 14, 1997, when he was transferred to a rehabilitation centre. Rather, he answered a leading question by his counsel — “And you stayed in the hospital in intensive care, I imagine?” — as follows: “Until November 14, 1997”. I am convinced that Mr. Dumoulin did not properly understand the scope of the question. I do not think he listened to the second part. Rather, I believe that he answered only the first part of the question and that he meant to say that he stayed in the St-Jérôme hospital until November 14.
[32] In my opinion, it would be very surprising that a patient could have remained in intensive care at the St-Jérôme hospital from October 5 until November 14 and then been transferred to a rehabilitation centre right away. It is much more likely that Mr. Dumoulin was in intensive care for a few days after going into CVA, while his condition was unstable, and that he then stayed in a regular hospital room for a further period so it could be ensured that he was recovering normally. It seems highly unlikely to me that the St-Jérôme hospital would have released Mr. Dumoulin on November 14, 1997, if he had been in such a state of unconsciousness during the days just before he left that he was unable to ask someone to file a notice of appeal for him.
[33] I also do not think that everything Mr. Dumoulin said should be taken literally. He said on the one hand that he could not do anything, but on the other hand he admitted that he was able to speak. He also admitted that his memory came back gradually. The evidence does not show when his memory became adequate again or what the state of his memory was on October 30, 1997.
[34] In addition, the evidence shows that a third party typed a notice of appeal dated December 2, 1997, to be signed by Mr. Dumoulin. It was Mr. Dumoulin himself who signed the notice of appeal — although with another person’s assistance — and who dropped off the envelope containing it at the rehabilitation centre's reception desk around the end of January 1998.
[35] The evidence adduced before me tends to support the position that Mr. Dumoulin’s CVA was not so serious that he was unconscious on October 30, 1997. The fact that he could speak before November 14, 1997, that he could make his own way to the reception desk at the rehabilitation centre to drop off his envelope in January 1998 and that he appeared before me alone on May 1, 1998, to contest the Minister’s motion also suggests that the effects of his CVA diminished fairly quickly.
[36] In conclusion, the evidence has not shown convincingly that Mr. Dumoulin was unconscious or that it was impossible in fact for him to act by being represented by others as of October 30, 1997.
[37] There is another reason to reject the arguments made by counsel for Mr. Dumoulin. In the civil law, there is a doctrine that the rules respecting suspension of prescription do not apply to a term of forfeiture or a strict time limit, also known as a predetermined time limit. The Civil Code recognizes a distinction between a prescription period and a term of forfeiture. Article 2878 C.C. states the following: “The court may not, of its own motion, supply the plea of prescription. However, it shall, of its own motion, declare the remedy forfeited where so provided by law.” In La prescription (Montréal, Les Presses de l’Université de Montréal, 1977), Pierre Martineau describes predetermined time limits as follows at page 369:
[TRANSLATION]
A predetermined time limit is, in a way, a condition under which the law grants a right; that right must, on pain of forfeiture, be exercised within the prescribed time, otherwise it will be irretrievably extinguished; the holder of the right can on no account be granted relief from his or her failure to exercise it for any reason.
At page 370, Pierre Martineau explains the effects of predetermined time limits as follows:
[TRANSLATION]
Most writers agree that predetermined time limits have the following effects:
1. The time limit is strict. A person who has allowed the time limit to expire without exercising his right automatically forfeits the right. The person cannot be granted any relief from the forfeiture. The time limit can on no account be extended.
2. It follows that terms of forfeiture cannot be suspended. They run against everyone: minors, interdicted persons, spouses during marriage. The impossibility of acting cannot be invoked.
3. Nor can such time limits be interrupted. Thus, recognition of the existence of the right does not prevent the time from continuing to run.
4. Once the term of forfeiture has expired, it is impossible to assert one's right either by means of an action or by invoking an exception; the quae temporalia sunt ad agendum perpetua sunt ad excipiendum rule (“actions are temporary but exceptions are perpetual”) does not apply to terms of forfeiture.
5. As in the case of short prescription periods, the courts must raise this plea of their own motion. Cases of forfeiture are cases in which the law denies the action. . . .
[Emphasis added.]
As stated above, the Federal Court of Appeal, in Lamarre and Vaillancourt, supra, has already established that the time limit set out in section 103 of the Act is a strict time limit. As a result, even if the Civil Code’s provisions were applicable and it had been proved that it was impossible for Mr. Dumoulin to act, article 2904 C.C. would be of no help to his case.
[38] In conclusion, the Court grants the Minister’s motion and quashes Mr. Dumoulin’s appeal.
Signed at Ottawa, Canada, this 22nd day of October 1998.
“Pierre Archambault”
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 31st day of May 1999.
Erich Klein, Revisor
[1] The Federal Court stated the following:
[2] There is no question, ever since this Court’s decision in Vaillancourt,1 that the 90-day time limit set by subsection 70(1) of the Unemployment Insurance Act for an appeal from a decision of the Minister is a strict time limit which the Tax Court of Canada is unable to extend.
_________________________
1 Canada (A.G.) v. Vaillancourt, unreported decision of this Court dated May 14, 1992, file number A-639-91.
[Emphasis added.]
It is interesting to note that, in Nakis Holdings Ltd. v. Sous-ministre du Revenu du Québec, [1985] R.D.J. 468, Quebec C.A., at page 473, the Quebec Court of Appeal concluded that the 90-day time limit for appealing an assessment under the Taxation Act is also a strict time limit.
[2] Paragraph 2 of their written submission.
[3] Paragraph 15 of their written submission.
[4] In their written submission, and inter alia at page 7 and paragraph 52, counsel for Mr. Dumoulin also cited section 4 of the Tax Court of Canada Rules (General Procedure), which provides that those rules are to be liberally construed. Those rules are not applicable to this case either. The applicable rules are rather the Rules respecting the Employment Insurance Act, section 3 of which contains a rule similar to the said section 4.
[5] Paragraph 36 of their written submission.
[6] Gauthier v. Lac Brome (Ville), [1998] S.C.J. No. 55 (QL), a case referred to by counsel for Mr. Dumoulin, involved an action in damages brought against a city by a person who was beaten and tortured by city police officers. That is a matter which comes under the Civil Code.
[7] Mr. Dumoulin did not adduce any evidence suggesting that the notice of appeal was prepared after that date.