Date: 20020501
Docket: 2001-458-GST-I
BETWEEN:
CALVIN D. BRUNER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for order
Miller, J.T.C.C.
[1] This is a motion brought by the Minister of National Revenue (the "Minister") in the informal procedure appeal of Mr. Carl Bruner. In the Respondent's Notice of Motion, the motion is stated as follows:
1. That the Appellant provide particulars of the relief that he seeks from this Court as would be required by Rule 48 and form 21(1)(a) for a General Procedure case; and
2. An Order that, pursuant to section 18.3002 of the Tax Court of Canada Act, R.S.C. 1985 c. T-2 (the "Act"), upon request of the Attorney General of Canada, Sections 17.1, 17.2 and 17.4 to 17.8 of the Act are to apply in respect of the subject appeal in respect of which sections 18.3003 and 18.3007 to 18.301 would otherwise have applied.
[2] In the grounds for the motion, the Respondent indicates that the Attorney General has requested, within the time periods set out in subsection 18.3002(2) of the Tax Court of Canada Act (the "Act"), that sections 17.1, 17.2 and 17.4 to 17.8 apply. In a subsequent supplementary Affidavit and written submissions, the Respondent stated:
...
4. The Notice of Motion contained a statement that the motion was brought within 60 days after the transmittal of the Notice of Appeal to the Minister, as required by section 18.3002 of the Tax Court of Canada Act (the "Act"). The written submissions filed with the Notice of Motion, contained the statement that the motion to have this appeal heard under the Tax Court of Canada's General Procedure could be brought at any time prior to the due date for filing the Reply to the Appellant's Notice of Appeal. These statements were made in reliance upon Rule 11 of the Tax Court of Canada Rules (General Procedure) (the "Rules"), which provides that time does not run between December 21 and January 7 of each year. Counsel for the Respondent was under the impression that time limit for filing the motion was the same as that for filing the reply and therefore the motion could be filed at any time prior to the due date for filing the Reply to the Notice of Appeal.
Notice of Motion, Respondent's Motion Record filed March 7, 2002, at tab 1 and tab 4 paragraph 12.
Affidavit of Michael Usher Ezri, sworn on March 21, 2002 at paragraph 5.
5. Subsequent to March 7, 2002, counsel for the Respondent became aware that the computation of time under section 18.3002 of the Act is subject to different provisions and is not suspended between December 21 and January 7. As a result the 60 day period referred to in section 18.3002 lapsed on March 1, 2002.
Affidavit of Michael Usher Ezri, sworn on March 21, 2002.
[3] Pursuant to section 18.3002 of the Act, the Respondent may bring a motion to move an Informal Procedure appeal up to a General Procedure appeal within 60 days of the day the Court Registry transmits a Notice of Appeal to the Minister. If the Respondent fails to make a request within that time period, which is the situation before me, then the request is only to be granted if one of the following applies:
1. The Court is satisfied that the Attorney General of Canada became aware of information that justifies making the request after the 60 day period. There was no evidence of such before me.
2. The Appellant consents. Clearly, he has not.
or
3. The Court is satisfied that the request is otherwise reasonable in the circumstances.
[4] What is meant by "otherwise reasonable in the circumstances"? Mr. Bruner contends that the only circumstances to consider are those that brought about the failure to make the request on a timely basis. With respect, I disagree. It must be appreciated that subsection 18.3002(1) of the Act gives the Respondent the right to bump up an appeal under the Excise Tax Act from the Informal Procedure to the General Procedure as a matter of course, if the Respondent brings the application within the 60 day period; that is, the Court must grant the request if timely. No reasons need be given. If the request is not timely, then the onus is on the Respondent to show why it would be reasonable in the circumstances to grant the request. It would follow that just the fact of the delay in making the request should not be determinative, as the very reason for the provision is because there has been a delay. Certainly the reason for the delay would have a bearing as would the length of the delay, though these should not be the only circumstances to determine the reasonableness of the request. The reason for the delay is the first factor I will consider in determining the reasonableness.
[5] The Respondent made a mistake in miscalculating the limitation for bringing a motion to bump up the appeal to the General Procedure. There is no issue of new information becoming available. The Respondent knew the difficulties he perceived to be facing with the Informal Procedure appeal from the moment the Notice of Appeal was received. Nothing changed thereafter. The Respondent, though believing to have met the deadline of March 8, 2002, by filing the motion on March 7, 2002, did in fact miss the correct deadline by six days. As already indicated, this is not by itself a circumstance sufficient to dismiss the Respondent's motion, especially as I am satisfied there was an intent to file on time. However, it is a circumstance that leads me to place an onus on the Respondent to show convincingly that all the other circumstances justify the bump up to the General Procedure.
[6] The next circumstance to consider is the length of the delay - six days. Mr. Bruner was obviously frustrated by delays in this matter, but I fail to see how a time period of just six days is devastating to him. This leads to the factor of timeliness generally. Mr. Bruner claims that bumping the Informal Procedure to a General Procedure would further delay the resolution of the Informal Procedure appeal. In that he is right. While Respondent's counsel stressed the advantages both the Respondent and the Appellant would gain from having all the processes of the General Procedure at their disposal, this certainly did not appear to impress Mr. Bruner. He believes his good name has been tainted by the very issuance of the Notice of Assessment and, from his perspective, the sooner he can deal with that issue, the better. Though this raises a potential problem as to whether there is an amount at issue, I do accept Mr. Bruner's legitimate concern that granting the application could lead to delays on his personal appeal.
[7] The next factor to consider is the fact that 1088275 Ontario Limited, a company wholly owned by Mr. Bruner, appealed by way of the General Procedure the Minister's Notice of Decision of September 28, 2001, confirming an assessment of July 30, 1999. The appeal was filed coincidentally with Mr. Bruner's Informal Procedure appeal. The facts surrounding the corporate appeal relate to the very same transactions as raised in Mr. Bruner's appeal. Indeed, the Respondent has brought an application in the General Procedure case for consolidation of that matter with Mr. Bruner's appeal. That motion was to be heard subsequent to the decision in the motion before me. While I can find nothing in the Rules of the Tax Court that prohibits an Informal Procedure and General Procedure to be heard on common evidence, it is easy to foresee some practical, though not necessarily insurmountable, difficulties. To find that it is reasonable to bump up the Informal Procedure to the General Procedure, so that the matters can be joined is presumptive. It presumes an Informal Procedure and General Procedure cannot be heard on common evidence and it further presumes that an application for consolidation would necessarily succeed if bumped up. I give this factor little weight.
[8] Respondent's counsel emphasized that without moving the Informal Procedure to the General Procedure, there would be less likelihood of obtaining clarification of the issues, the very reason for bringing the second part of this motion. Having read Mr. Bruner's lengthy appeal, I can appreciate that there may be some cause for seeking clarification, but Informal Procedure appeals are seldom as enlightening as they might be. Mr. Bruner acknowledged in his argument that his objective in this appeal was not monetary, but was to remove what he perceived to be a slur against his character by the very issuance of the Notice of Assessment. He maintained the assessment could only have been issued when it was if the Minister had determined Mr. Bruner acted fraudulently or had misrepresented matters. This is the matter at issue. Respondent's counsel was not satisfied with this verbal clarification, as it was not contained in the pleadings, and felt it gave support for the need to bump up the matter into the General Procedure so an appropriate written clarification could be obtained. I don't see it that way. The Informal Procedure is intended to allow the Appellant to receive an expedient fair hearing, unencumbered by the motions, cross-motions and technicalities which serve Appellants and Respondents well in General Procedure hearings. The Appellant's objective of speedy, but fair justice is balanced against the protection afforded by such technicalities, and the balance for many appellants, contrary no doubt to the views of the legal purists, tips in favour of the expedient Informal Procedure. I do not accept the Respondent's contention that the Appellant may be better served in the General Procedure. The Appellant has his reasons for being in the Informal Procedure and it is not for the agent of the Crown to determine what is best for the Appellant. The Respondent is struggling with the Notice of Appeal, but that is not a circumstance justifying the bump up to the General Procedure. The Respondent is better aware, after the hearing of this application, as to the Appellant's issue.
[9] Mr. Bruner raises two further circumstances to consider; the prejudice he would suffer by allowing the application and the cost he would incur. The latter issue can be dealt with to some degree by an award of costs, though I appreciate Mr. Bruner's concern is a legitimate one.
[10] Dealing with the issue of prejudice to Mr. Bruner, his main objection appears to be that by bumping up to the General Procedure, he will lose the advantage of having the facts in his Notice of Appeal accepted as true. Mr. Bruner's argument is that since the Respondent has not filed a Reply and has not brought an application to do so in the Informal Procedure, Mr. Bruner is entitled to rely on subsection 18.3003(2) of the Act, which reads:
(2) The Minister of National Revenue may file a reply to a notice of appeal after the period referred to in subsection (1) and, where the Minister does not file the reply within the sixty day period or within the extension of time consented to by the person who has brought the appeal or granted by the Court, the allegations of fact contained in the notice of appeal are presumed to be true for the purposes of the appeal.
[11] I accept that the Respondent has not brought such an application to file a Reply. It was not contained in the Notice of Motion and it was not argued by Respondent's counsel, who having had this brought to his attention after the Appellant's argument, then referred me to the Respondent's written submissions which did contain a reference to such a request. I am not prepared to accept that late reference to the written submissions as constituting an application for extension of time to file a Reply. This does not preclude the Respondent from making such a request, as subsection 18.3003(1) of the Act does allow a request before or after the 60 day period referred to therein.
[12] Mr. Bruner is concerned that by bumping into the General Procedure, there is greater likelihood the facts in his appeal may be treated differently. In the General Procedure the failure to file the Reply on a timely basis leads to the presumption that the facts in the Appellant's appeal are true, though Rule 44(4) of the Tax Court of Canada Rules (General Procedure) (the "Rules") states:
(4) Subsection 12(3) has no application to this section and the presumption in subsection (2) is a rebuttable presumption.
There is no similar written rule in the Informal Procedure regarding a rebuttable presumption, though it is my understanding that the presumption in subsection 18.3003(2) of the Act is similarly a rebuttable presumption. Mr. Bruner is certainly justified in believing there must be a distinction, as why else would there be a need for Rule 44(4). I am satisfied that he has some cause for feeling he might be prejudiced in this regard.
[13] Another circumstance to consider is the magnitude and complexity of the claim. Mr. Bruner says the amount in issue is nil. Respondent's counsel says he does not know how much is in issue, notwithstanding his written submissions that the amount falls between $7,000 and $50,000 for the purpose of a cost award. While the Notice of Appeal is lengthy, neither its complexity nor magnitude justifies a move.
[14] Respondent's counsel referred me to Oakville Motor Sales & Leasing Inc. v. Canada, [1996] T.C.J. No. 1450, although that case does not deal with a delay due to a mistake but deals with information arising subsequent to the initial Notice of Appeal, which Judge Bowie found would justify making a request for an extension of time to file a Reply. There is no such similar circumstance in this case. Respondent's counsel also directed me to the Mazzuca v. Silvercreek Pharmacy Ltd., 56 O.R. (3d) 768 for the proposition that in procedural requests, the applicant need not show special circumstances, but should only be refused such an application if there would be prejudice to the other side. That case dealt with a very different matter than the one before me. I am not requiring the Respondent to show special circumstances to obtain the relief he seeks, but he certainly must show that the circumstances make his request reasonable.
[15] This is one of those fine balancing acts where weighing the circumstances in assessing an issue does not lead to an inevitable conclusion. In tipping the balance in Mr. Bruner's favour, I revert to a basic principle, which is what will best ensure that the interests of justice are not only served but also seen to be served. In this case, I find that Mr. Bruner drafted an appropriate, albeit lengthy, Notice of Appeal and elected the Informal Procedure. He did so for a reason. He has satisfied me that a bump up to the General Procedure would prove costly, would cause unnecessary delay, and in his mind, some prejudice to his case. The Respondent missed, through inadvertence, the deadline for an automatic bump up to the General Procedure, and has not filed for an extension of time to Reply. I am not satisfied that in this Informal Procedure the Respondent needs any more information from the Notice of Appeal than is contained therein already. Neither the magnitude, complexity or the coincidental claim from Mr. Bruner's company are sufficient to push the balance in the Respondent's favour. The Respondent has not convincingly satisfied me that the request is otherwise reasonable in the circumstances. His motion to move this matter to the General Procedure is dismissed.
[16] With respect to the Respondent's motion for particulars, I am reluctant to open the door in Informal Procedures for this type of motion. The Rules do not require a special form for the appeal other than it set out in general terms the reason for the appeal and the facts. This can create challenges to the Minister, given the more frequent habit of appellants to provide the skimpiest of information. Mr. Bruner does not fall into that category. He has filed a lengthy appeal. He has met the requirements of the Rules. The Minister is aware of the assessment at issue and is aware of Mr. Bruner's displeasure. This case needs to move ahead. I see no need for particulars in this Informal Procedure matter. The Respondent's motion for particulars is dismissed.
Signed at Ottawa, Ontario, this 1st day of May, 2002.
|
"Campbell J. Miller" |
J.T.C.C.
COURT FILE NO.: 2001-4568(GST)I
STYLE OF CAUSE: Calvin D. Bruner and The Queen
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 24, 2002
REASONS FOR ORDER BY: The Hon. Judge Campbell J. Miller
DATE OF ORDER: May 1, 2002
APPEARANCES:
For the Appellant: The Appellant himself
Counsel for the Respondent: Roger Leclaire
Michelle Farrell
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-4568(GST)I
BETWEEN:
CALVIN D. BRUNER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on April 24, 2002 at Toronto, Ontario by
the Honourable Judge Campbell J. Miller
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Roger Leclaire
Michelle Farrell
ORDER
Upon motion by the Respondent for an Order that:
1. Pursuant to section 18.3002 of the Tax Court of Canada Act the General Procedure set out in sections 17.1, 17.2 and 17.4 to 17.8 inclusive apply; and
2. The Appellant provide particulars of the relief that he seeks from this Court as would be required by Rule 48 and form 21(1)(a) of the Tax Court of Canada Rules (General Procedure);
And upon reading the Affidavits of Michael Mahoney and Michael Usher Ezri as filed;
And upon hearing what was alleged by the parties;
It is ordered that the motion be dismissed, in accordance with the attached Reasons for Order.
Signed at Ottawa, Canada, this 1st day of May, 2002.
|
"Campbell J. Miller" |
J.T.C.C.