Date: 20010214
Docket: 2000-3660-IT-APP
BETWEEN:
BRIAN HEAP,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Order
Lamarre Proulx, J.T.C.C.
[1] This is an application for an order extending the time within which an appeal may be instituted in accordance with section 167 of the Income Tax Act (the "Act").
[2] The question at issue is whether such an application made by regular mail on the last day of the statutory time limit of a year provided for in paragraph 167(5)(a) of the Act is made within that statutory time limit.
[3] The pertinent part of subsection 169(1) reads as follow:
169(1) Where a taxpayer has served notice of objection to an assessment under section 165, the taxpayer may appeal to the Tax Court of Canada to have the assessment vacated or varied after either
(a) the Minister has confirmed the assessment or reassessed, or
...
but no appeal under this section may be instituted after the expiration of 90 days from the day notice has been mailed to the taxpayer under section 165 that the Minister has confirmed the assessment or reassessed.
[4] Subsections 167(1), 167(3) and paragraph 167(5)(a) of the Act read as follows:
167(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.
167(3) An application under subsection (1) shall be made by filing in the Registry of the Tax Court of Canada, or by sending by registered mail addressed to an office of the Registry, 3 copies of the application accompanied by 3 copies of the notice of appeal.
167(5) 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
...
[5] The parties agree that August 21, 2000 was the last day of the period of one year provided for in paragraph 167(5)(a) of the Act. An application for an extension of time to file an appeal was sent to this Court by Counsel for the Applicant by regular mail on the last day of the delay, being August 21, 2000. It was received by the Court on August 24, 2000.
[6] There is an Affidavit of Counsel's secretary stating that it was through a misunderstanding on her part that she sent it by regular mail. Paragraphs 2 to 5 of the Affidavit read as follows:
2. I received written instructions by Orly Kahane-Rapport, on August 21, 2000, to "send the Application for Extension of Time along with the Notice of Appeal by Reg. Mail to the Registrar of the Tax Court of Canada".
3. On Monday August 21, 2000, I sent the Application for Extension of Time along with the Notice of Appeal by regular mail to the Registrar of the Tax Court of Canada.
Attached hereto and marked as exhibit "A" is a copy of a letter dated August 21, 2000.
4. On November 27, 2000, I was made aware that the package should have been sent out by Registered Mail pursuant to the Tax Court of Canada's procedures.
5. This was a mistake on my part wherein I mistook the written instructions of Orly Kahane-Rapport of "Reg.Mail" to be regular mail when her intent was that I send it Registered Mail.
[7] Counsel for the Applicant filed as Exhibit A-1 a Book of Documents divided in five tabs. The purpose of these documents is to show that until August 10, 2000, there was correspondence between the Applicant and the Minister's agent concerning the application of the fairness provisions of the Act and that therefore there was no lack of diligence on the Applicant's part.
[8] Counsel for the Applicant referred to the decision of this Court in Skirt Togs Industries Ltd. v. M.N.R., [1982] C.T.C. 2156, and more particularly to the excerpts at page 2163 :
... However, the decision of the Supreme Court in the Bowen case must be followed:
... in accordance with the principle that a party may not be deprived of his rights on account of an error of counsel where it is possible to rectify the consequences of such error without injustice to the opposing party ...
[9] Counsel for the Applicant argued forcefully that there was no prejudice to the Respondent and the Applicant should not be deprived of his right since there were reasonable grounds for appeal.
[10] Counsel also referred to D. Kramer et al v. M.N.R., [1984] C.T.C. 2784, where it was found by the Tax Review Board that the application had indeed been sent within the year, although it got lost and was not received by the Board's Registry. Counsel for the Applicant referred to the following excerpt at page 2787:
In these circumstances, which are unusual, I conclude that Mr. Brudner, on behalf of the Kramer family made, in all good faith, applications for extension of time for filing notices of objection on October 7 or 8, 1982, and took the normal necessary steps to have the applications sent to the Tax Review Board within the meaning of paragraph 167(5)(a) of the Act. In my opinion, a stricter interpretation of the wording of paragraph 167(5)(a) would, in the circumstances, remove the discretionary power, which Parliament intended to confer on this Court in subsection 167(1).
[11] Counsel for the Applicant underlines the last sentence and submits that the Court should interpret the time limit provided for in paragraph 167(5)(a) of the Act in a liberal manner in view of exercising its discretion regarding subsection 167(1) of the Act.
[12] In the same line of thought, Counsel for the Applicant referred to Hazan v. The Queen, [1998] 2 C.T.C. 2665, where it was accepted that the taxpayer did not become aware of the second notices of assessments and that the time for filing notice did not begin until the taxpayer became aware of the reassessments.
[13] Counsel for the Respondent did not raise any issue other than that the Applicant was outside the statutory time limit and that there was no discretion to extend it. He referred to the decisions of this Court in Porodo v. The Queen, [1990] T.C.J. No. 613, and Minuteman Press of Canada Co. v. The Queen, [1987] T.C.J. No. 1160. In both of these cases, the Applicants had referred to the decision of D. Kramer et al. (supra). He quoted from Porodo (supra) the following excerpt:
In Kramer, the Court accepted the sworn testimony of the accountant plus certain corroborating documents to prove that the taxpayers had complied with subsection 167(3) on October 8, 1982. In this application, Mr. Porodo testified that he did not comply with section 165 but sent his objections to Winnipeg by ordinary mail. In these circumstances, I find that the Kramer case is not helpful.
[14] Counsel for the Respondent referred to the decision of the Supreme Court of Canada in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, and more particularly to the following excerpt at page 737:
As used in its normal grammatical sense, the word "shall" is presumptively imperative. ... It is therefore incumbent upon this Court to conclude that Parliament, when it used the word "shall" in s. 23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867, intended that those sections be construed as mandatory or imperative, in the sense that they must be obeyed, unless such an interpretation of the word "shall" would be utterly inconsistent with the context in which it has been used and would render the sections irrational or meaningless. See, e.g. Re Public Finance Corp. and Edwards Garage Ltd. (1957), 22 W.W.R. 312, p. 317 (Alta. S.C.).
Conclusion
[15] The evidence is that the Applicant did not comply with subsection 167(3) of the Act. In so doing, the Applicant did not comply with paragraph 167(5)(a) of the Act, which sets a definitive time limit within which an application to extend the time specified at subsection 169(1) of the Act may be made. By their purpose, paragraph 167(5)(a) and subsection 167(3) are imperative. The matter of whether or not there is a prejudice to the Respondent is not relevant. The application should be received by the Court Registry, or at least the application should have been sent by registered mail within the year provided for in paragraph 167(5)(a) of the Act. The Court does not have any discretion to extend that time. The only discretion that it has is to extend the 90-day period provided for in subsection 169(1) of the Act.
[16] None of the decisions referred to by Counsel for the Applicant were to the effect that if a taxpayer had not complied with the statutory time limit of one year, the Court had discretion to extend it.
[17] The application is dismissed.
Signed at Ottawa, Canada, this 14th day of February, 2001.
"Louise Lamarre Proulx"
J.T.C.C.
COURT FILE NO.: 2000-3660(IT)APP
STYLE OF CAUSE: Brian Heap and Her Majesty the Queen
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 4, 2000
REASONS FOR ORDER BY: The Hon. Judge Louise Lamarre Proulx
DATE OF ORDER: February 14, 2001
APPEARANCES:
Counsel for the Appellant: Orly Kahane-Rapport
Counsel for the Respondent: Steven Leckie
COUNSEL OF RECORD:
For the Appellant:
Name: Orly Kahane-Rapport
Firm: William E. Mathers & Associate
Mississauga, Ontario
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2000-3660(IT)APP
BETWEEN:
BRIAN HEAP,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Application heard on December 4, 2000 at Toronto, Ontario, by
the Honourable Judge Louise Lamarre Proulx
Appearances
Counsel for the Applicant: Orly Kahane-Rapport
Counsel for the Respondent: Steven Leckie
ORDER
Upon application for an Order extending the time within which an appeal from the assessment made under subsection 227(10) of the Income Tax Act, notice of which bears number 00363 and is dated January 8, 1998, may be instituted;
The application is dismissed, in accordance with the attached Reasons for Order.
Signed at Ottawa, Canada, this 14th day of February, 2001.
|
"Louise Lamarre Proulx" |
J.T.C.C.