Date: 20000620
Docket: 2000-4220-IT
BETWEEN:
EMILIA SPENSIERI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for order
Bowman, A.C.J.
[1] The appellant has been caught up in a bit of a procedural mess and it is in the interests of justice that she be extricated from it so that she can get on with having the case dealt with on its merits.
[2] On October 6, 2000 the appellant applied for an extension of time in which to file her notice of appeal from her 1995 assessment. Her chartered accountant mailed the notice of appeal on September 18, 2000, the last day for appealing. The notice of appeal was received by the court one day after the expiration of the 90 day period. The Crown did not oppose the application and on December 21, 2000 I granted the application, and ordered
An appeal from the assessment may be instituted on or before February 5, 2001.
[3] The notice of appeal as originally filed and also filed with the original application was signed by J. Altenhaus, CA, as agent for the appellant. It does not specifically elect the informal procedure and so it follows that it was intended to be governed by the general procedure.[1]
[4] A copy of my order was sent to CCRA as well as to the Department of Justice and to the solicitor for the appellant, Mr. Alexandre Dufresne of Spiegel Sohmer.
[5] The motion dated March 28, 2001 to amend my order of December 21, 2000 was heard by me on June 12, 2001 by telephone conference. The motion is to amend the order to permit the appellant to file the notice of appeal on the day on which the motion is granted. The motion was supported by an affidavit and was accompanied by a fresh as amended notice of appeal, as well as a cheque for $250. The amount of the filing fee would imply that the General Procedure is being chosen.
[6] The way the problem arose will be apparent from paragraphs 8 to 11 of the supporting affidavit.
8. Having filed the Notice of Appeal with its Application on October 6th, 2000, the Applicant considered that the Notice of Appeal had been filed in accordance with the order of December 21st, 2000 (i.e. prior to February 5th, 2001).
9. However, pursuant to a telephone conversation with the Court's Registry Officer, the Applicant's attorneys were told that the Notice of Appeal had not been accepted by the Court as the fees relating to the Notice of Appeal had not been paid.
10. The Applicant's attorneys were under the impression that the appropriate fees had been paid when the Notice of Appeal was originally filed by the Applicant's accountant on September 18th, 2000.
11. The Court did not advise the Applicant that the Notice of Appeal filed in conjunction with the Application for Extension of time on October 6th, 2000 had not been accepted by the Court.
[7] This is a perfectly understandable mistake and one that should not redound to the detriment of the appellant.
[8] Nonetheless the Crown has responded with a volley of technical objections which are expressed quite articulately in the following written submission.
This is in response to your letter dated April 5, 2001 in the above-mentioned file by which you asked Me Jacques Loïacono for written representations or comments relating to the motion of Me Alexandre Dufresne dated March 28, 2001.
The applicant filed with the Tax Court of Canada a motion to remedy the fact that he did not file his notice of appeal within the time limit allowed by an order of Mr. Justice Bowman dated December 21, 2001. By his motion, the applicant asks the Court "to amend the order of Justice D.G.H. Bowman dated December 21st, 2000" to allow him to file his notice of appeal.
The respondent objects to the motion since the modification of an order by the Tax Court of Canada is not a remedy available to the applicant in the Tax Court of Canada Act, in the Tax Court of Canada Rules or in any other legislation applicable to the Tax Court of Canada. Therefore, the respondent argues that there is no legal basis for the applicant's motion.
First of all, it is the informal procedure that applies to a request for extension of time pursuant to subsection 18.29(3) of the Tax Court of Canada Act. Nothing in this Act allows the reconsideration of a judgment or an order. Moreover, the Tax Court of Canada Rules (Informal Procedure) are also silent about the existence of such a remedy.
Not only are the laws silent about modifying an order but section 18.24 of the Tax Court of Canada Act explicitly states that "a judgment of the Court on an appeal referred to in section 18 is final and conclusive and is not open to question or review in any court except the Federal Court of Appeal in accordance with section 28 of the Federal Court Act". This disposition also applies to applications for extension of time.
The Act and the Rules relating to the informal procedure being silent about the possibility to modify an order of the Tax Court of Canada, we could look at the Rules relating to the general procedure for guidance. The relevant section of the Tax Court of Canada Rules (General Procedure) is section 172 which reads:
172. (1) A judgment that,
(a) Contains an error arising from an accidental slip or omission, or
(b) Requires amendment in any matter on which the Court did not adjudicate,
May be amended by the Court on application or of its own motion.
(2) A party who seeks to,
(a) have a judgment set aside or varied on the ground of fraud or of facts arising or discovered after it was made,
(b) suspend the operation of a judgment, or
(c) obtain other relief than that originally directed
may made a motion for the relief claimed.
Section 172 of the Rules establishes a mechanism to reconsider a judgment. Even in the case where that remedy is available, the situation in the above-mentioned file does not meet the criteria set forth by the law.
The criteria referred to in subsection (1) are not met. The applicant does not argue that there might have been an error in the order of Mr. Justice Bowman. In fact, the applicant only wants the Court to modify its order because he did not comply with it, not because of any mistakes in the order.
As of subsection (2), there has been no allegation of fraud in the motion of the applicant and we do not believe that facts discovered after the order was rendered would have changed Mr. Justice Bowman's decision. In fact, his decision was favourable to the applicant, giving him a 90 day delay to file his notice of appeal. The applicant is asking for a modification of the order, therefore he is not asking for "other relief than that originally directed". In fact, the applicant is asking for the original relief sought to be modified.
Reading the laws applicable to the Tax Court of Canada, the relief sought by the applicant in his motion is not available under the Rules - Informal Procedure. Even if we look for guidance in the Rules - General Procedure, the section allowing the reconsideration of a judgment does not allow such a remedy in this case.
Finally, the applicant knew or should have known that his appeal was not duly filed with the Tax Court of Canada. The writing of the order itself should have worried the applicant, since it left him more than two months to file his notice of appeal. This notice of appeal having been filed, the order would have accepted the filing of the notice of appeal. Moreover, the applicant never received the proof of service of his notice of appeal, which should also have created a doubt relating to the filing of the notice of appeal.
For all these reasons, the motion of the applicant should be dismissed.
[9] I tend to agree that this is not a case for the application of the slip rule. That does not however end the matter.
[10] I do not mean to be either dismissive or disrespectful of the Crown's submission, but I cannot help thinking that the respondent is being rather technical in mounting a major campaign to keep the appellant from having her day in court because of a rather minor slip-up. It is not surprising, if a person has to manoeuvre through two acts (the Income Tax Act and the Tax Court of Canada Act) and two sets of rules, informal and general, that he or she might make a mistake. The rules are not intended to be a trap for the unwary or to create a minefield of obstacles for litigants. Rather they are supposed to facilitate the resolution of substantive disputes.
[11] I think this case is in the general procedure. Section 21 of the general procedure rules sets out the manner of instituting an appeal. This requires that the notice of appeal be filed in the registry and that the filing fee be paid.
[12] Sections 7 and 9 of the general procedure rules provide
7. A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or direction in a proceeding a nullity, and the Court,
(a) may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute, or
(b) only where and as necessary in the interests of justice, may set aside the proceeding or a step, document or direction in the proceeding in whole or in part.
9. The Court may, only where and as necessary in the interests of justice, dispense with compliance with any rule at any time.
[13] These rules clearly give the court the power to extend the time for paying the filing fee.
[14] I might add that precisely the same result will be achieved if I treat this motion as an application under section 167 of the Income Tax Act for an extension of time to file an appeal. The appellant is within the time to do so and section 167 no longer contains a prohibition against granting an extension of time if the court had previously granted such an extension from the same assessment.
[15] I am therefore ordering that
(a) the requirement in Rule 30 of the Tax Court of Canada Rules (General Procedure) that the original notice of appeal be signed by counsel is dispensed with;
(b) the original notice of appeal dated September 18, 2000 is a valid notice of appeal;
(c) the appellant is entitled to file a fresh as amended notice of appeal in the form accompanying the notice of motion of March 28, 2001;
(d) the time for paying the filing fee is extended to the date upon which the cheque of Spiegel Sohmer for $250 was received by the court;
(e) the fresh as amended notice of appeal accompanying the appellant's notice of motion of March 28, 2001 is a valid notice of appeal;
(f) the respondent has 60 days from the date of this order to file a reply to the fresh as amended notice of appeal.
[16] The costs of this motion are costs in the cause.
Signed at Montréal, Canada, this 20th day of June 2001.
"D.G.H. Bowman"
A.C.J.
COURT FILE NO.: 2000-4220(IT)
STYLE OF CAUSE: Between Emilia Spensieri and
Her Majesty The Queen
PLACE OF HEARING: Conference call
DATE OF HEARING: June 12, 2001
REASONS FOR ORDER BY: The Honourable D.G.H. Bowman
Associate Chief Judge
DATE OF ORDER: June 20, 2001
APPEARANCES:
Counsel for the Appellant: Alexandre Dufresne, Esq.
Counsel for the Respondent: Annick Provencher
COUNSEL OF RECORD:
For the Appellant:
Name: Alexandre Dufresne, Esq.
Firm: Spiegel Sohmer
Montréal, Quebec
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2000-4220(IT)
BETWEEN:
EMILIA SPENSIERI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard by way of conference call on June 12, 2001, by
The Honourable D.G.H. Bowman
Associate Chief Judge
Appearances
Counsel for the Appellant: Alexandre Dufresne, Esq.
Counsel for the Respondent: Annick Provencher
ORDER
Upon motion by the appellant to amend the order dated December 21, 2000
And upon hearing what was alleged by the parties
It is ordered that the motion be granted and
(a) the requirement in Rule 30 of the Tax Court of Canada Rules (General Procedure) that the original notice of appeal be signed by counsel is dispensed with;
.../2
(b) the original notice of appeal dated September 18, 2000 is a valid notice of appeal;
(c) the appellant is entitled to file a fresh as amended notice of appeal in the form accompanying the notice of motion of March 28, 2001;
(d) the time for paying the filing fee is extended to the date upon which the cheque of Spiegel Sohmer for $250 was received by the court;
(e) the fresh as amended notice of appeal accompanying the appellant's notice of motion of March 28, 2001 is a valid notice of appeal;
(f) the respondent has 60 days from the date of this order to file a reply to the fresh as amended notice of appeal.
The costs of this motion are costs in the cause.
Signed at Montréal, Canada, this 20th day of June 2001.
|
"D.G.H. Bowman" |
A.C.J.
[1] One might draw the inference that since the notice of appeal was signed by a chartered accountant and not a lawyer the informal procedure was intended to be chosen since only a lawyer may institute an appeal on behalf of another person in the general procedure. I think I would be stretching things a bit if I were to treat the fact that an accountant signed the notice of appeal as an election of the informal procedure. An alternative and even more far-fetched conclusion would be that the notice of appeal was a nullity since it was not signed by a lawyer. This would be pushing formalism to an absurdity. In any event I propose to dispense with the requirement in section 30 of the rules that the appeal be signed by counsel particularly in light of the fact that the fresh as amended notice of appeal is signed by counsel.