Date: 20001124
Docket: 2000-2404-IT-APP
BETWEEN:
STEVEN OSOVSKI,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Order
Lamarre, J.T.C.C.
[1] This is an application made by the applicant pursuant to subsection 167(1) of the Income Tax Act ("Act") for an Order extending the time within which an appeal may be instituted with respect to his 1998 taxation year. By Notification of Determination issued by the Minister of National Revenue ("Minister") regarding the goods and services tax credit ("GST credit") on August 27, 1999, the applicant was denied the GST credit for the 1998 taxation year on the basis that he was not an eligible individual within the meaning of paragraph 122.5(2)(c) of the Act which reads as follows:
SECTION 122.5: [Goods and services tax credit]
. . .
(2) Persons not eligible individuals, qualified relations or qualified dependants. Notwithstanding subsection (1), a person shall be deemed not to be an eligible individual for a taxation year or a qualified relation or qualified dependant of an individual for a taxation year where the person
. . .
(c) is, at the end of the year, confined to a prison or similar institution and has been so confined for a period of, or periods the total of which in the year was more than, 6 months.
[2] Indeed, it is not in dispute that the applicant was at the end of the year 1998 confined to a prison or similar institution and had been so confined for a period of, or periods the total of which in the year was more than, 6 months. In fact, at the time of the hearing, the applicant had been confined in the Cowansville Penitentiary serving a life sentence since 1995. The applicant is however of the view that he has been discriminated against under the above provision of the Act. He claims that his rights, as guaranteed by the Charter of Rights and Freedoms, have been infringed. This is why he is seeking to obtain an order extending the time within which he may institute an appeal against the determination by the Minister.
[3] The important dates to be considered in this application are the following. On September 22, 1999 the applicant served on the Minister a Notice of Objection with respect to the Notice of Determination of August 27, 1999. On November 5, 1999, the Minister sent the applicant a Notification of Confirmation of that determination. Although the time limit for filing a Notice of Appeal pursuant to subsection 169(1) of the Act expired on February 3, 2000, the applicant only filed his appeal in this Court on April 7, 2000. He was advised by this Court on April 27, 2000 that the appeal had been filed late and he was informed of the possibility of filing an application for an extension of time. The applicant filed such an application on May 26, 2000.
[4] To succeed in his application, the applicant must meet the conditions prescribed by subsection 167(5) of the Act. Subsections 167(1) and (5) read as follows:
SECTION 167: Extension of time to appeal.
(1) Where an appeal to the Tax Court of Canada has not been instituted by a taxpayer under section 169 within the time limited by that section for doing so, the taxpayer may make an application to the Court for an order extending the time within which the appeal may be instituted and the Court may make an order extending the time for appealing and may impose such terms as it deems just.
. . .
(5) When order to be made. No order shall be made under this section unless
(a) the application is made within one year after the expiration of the time limited by section 169 for appealing; and
(b) the taxpayer demonstrates that
(i) within the time otherwise limited by section 169 for appealing the taxpayer
(A) was unable to act or to instruct another to act in the taxpayer's name, or
(B) had a bona fide intention to appeal,
(ii) given the reasons set out in the application and the circumstances of the case, it would be just and equitable to grant the application,
(iii) the application was made as soon as circumstances permitted, and
(iv) there are reasonable grounds for the appeal.
[5] It is not questioned that the application was made within one year after the expiration of the time limited by section 169 for appealing. However, the applicant must also demonstrate that the other conditions have been met in order to succeed. Among other things, he must establish that he was unable to act or to instruct another to act in his name or that he had a bona fide intention to appeal between November 5, 1999 and February 3, 2000.
[6] The applicant acknowledged that he was aware of the procedure for filing a Notice of Appeal before this Court. However, he explained that during that period, he was concerned with his mother who was suffering from Alzheimer's disease. He said that he had made a request to the National Parole Board for temporary leave to visit her. He also said that his father was not in good health and passed away in the month of August 2000.
[7] On cross-examination, he admitted that his request to the National Parole Board was made in May 2000 and that the Board acknowledged receipt of that request on August 4, 2000.
[8] Ms. Alessandria Page, his unit manager at the penitentiary, testified that she never heard that the applicant had concerns with Revenue Canada during the period from November 5, 1999 to February 3, 2000. This was never brought to her attention by the applicant himself, his fellow inmates or any officer assigned to the applicant's case. There was also no record of any such concerns in the applicant's file. Ms. Page was aware only of the applicant's mother's health problems. She said that the applicant had easy access to stamps, envelopes and courier service. She knew that the applicant was indebted to his other inmates but she said that she could have provided the applicant with sufficient funds for the aforementioned items if necessary. She also said that the applicant had access to a telephone on request.
[9] The applicant was working during the week (for a very low salary) and had all his evenings free. The applicant said that he did not have the funds to pay for stamps during the period in question and that he did not want to burden the unit manager with his personal affairs.
[10] As for the time spent by the applicant on his request to the National Parole Board for a temporary leave, Ms. Page testified that the applicant only had to fill in a line or two on a single-page document and that it was the applicant's case management team that took care of all the required procedures after that. She said that the entire process was relatively short.
[11] On the whole of the evidence, I find that the applicant has not shown on a balance of probabilities that between November 5, 1999 and February 3, 2000 he was unable to act or to instruct another to act in his name to file his Notice of Appeal. I also find that he has not demonstrated that he had a bona fide intention to appeal during that period.
[12] The applicant said that at that time he could not focus on his appeal to this Court as he gave priority to his request to the National Parole Board for a temporary leave to visit his mother.
[13] In fact the evidence revealed that such a request to the National Parole Board can be processed rather quickly. Furthermore, the request was made by the applicant after the period at issue before me.
[14] The evidence also revealed that the applicant had access to all that was necessary to file an appeal before this Court but did not avail himself of the opportunity to do so within the time limit for filing such an appeal. The applicant has not convinced me that he was unable to act or to instruct another to act on his behalf before February 3, 2000. Nor has he convinced me that he had a bona fide intention to appeal before that date.
[15] Those two requirements not having been met, the applicant has therefore not satisfied all the conditions prescribed by subsection 167(5) of the Act, which is essential if an application for an extension of time is to be granted.
[16] For these reasons, I have no choice but to dismiss the application.
Signed at Ottawa, Canada, this 24th day of November 2000.
"Lucie Lamarre"
J.T.C.C.