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Docket: 2004-2449(IT)APP |
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BETWEEN: |
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ANDRÉ LORD, |
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Applicant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
____________________________________________________________________
[OFFICIAL ENGLISH TRANSLATION]
Application heard on August 27, 2004, at Montreal, Quebec.
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Before: The Honourable Justice Paul Bédard |
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Appearances: |
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For the Applicant: |
The Applicant Himself |
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Counsel for the Respondent: |
Simon Petit |
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ORDER
Considering the application to obtain an order to extend the time for appealing from the assessment made under the Income Tax Act for the 1990 taxation year;
The application is dismissed in accordance with the attached Reasons for Order.
Signed at Ottawa, Canada, this 12th day of October 2004.
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"Paul Bédard" |
Bédard J.
Translation certified true
on this 20th day of January 2005.
Colette Dupuis-Beaulne, Translator
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Citation: 2004TCC633 |
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Date: 20041012 |
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Docket: 2004-2449(IT)APP |
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BETWEEN: |
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ANDRÉ LORD, |
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Applicant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR ORDER
Bédard J.
[1] This is an application made under subsection 167(5) of the Income Tax Act ("the Act") to obtain an order to extend the time within which the applicant may appeal from the decision of the Minister of National Revenue ("the Minister"). The Court must determine whether the applicant's application to extend the time for appealing for the 1990 taxation year is well-founded.
[2] On June 28, 1994, the Minister sent the applicant a notice for reassessment for the 1990 taxation year. On or about September 23, 1994, the applicant served the Minister a notice of objection to the reassessment dated June 28, 1994, for the 1990 taxation year. By registered mail sent on November 6, 2003, the Minister informed the applicant that he had confirmed the reassessment dated June 28, 1994, for the 1990 taxation year. The applicant did not appeal to the Court within the set time, which expired on February 4, 2004, with regard to the reassessment dated June 28, 1994, which was confirmed on November 6, 2003. On May 31, 2004, the applicant made an application to the Court for an order extending the time for appealing from the reassessment dated June 28, 1994, for the 1990 taxation year.
[3] In 1994, the applicant had engaged the services of Sylvain Castonguay to prepare and serve notices of objection to the assessments that had been made for the 1990, 1991, and 1992 taxation years, including the assessment established on June 28, 1994, for the 1990 taxation year. Those assessments had been established with regard to investments the applicant had made in FTN enr., a research and development company. When he received the notice from the Minister dated November 6, 2003, which confirmed the reassessment of June 28, 1994, for 1990, the applicant believed that Mr. Castonguay was still looking after his file, even though he had not heard from him since 1998. The only steps the applicant took between November 6, 2003, and the end of March 2004 were the following: he had called Mr. Castonguay a number of times and had gone to his office three times, but had not managed to speak to him or meet with him.
[4] The applicant testified that, at the end of March 2004, he had met with Mr. Douglas Atherton, a co-ordinator of a pool of investors who participated in research and development projects. Mr. Atherton testified that he had told the applicant that Mr. Castonguay was no longer working on the investors' files, and therefore, he was not working on the applicant's files. Mr. Atherton had thus strongly recommended that the applicant come to a meeting of investors that was to be held in April 2004. Mr. Atherton explained that, during that meeting at the beginning of April 2004, he had given the applicant a model pleading to enable him to submit an application to extend the time. The applicant testified that, following that meeting, he had contacted Mr. Charles Lemire of the Shawinigan Appeals Division.
[5] It should be pointed out that the Court had sent the applicant a copy of the letter dated October 30, 2002, (Exhibit I-1) that had been addressed to Mr. James Bonhomme, and in which the Court acknowledged receipt of the notice of Mr. Bonhomme's removal of counsel of record in the case concerning the 1992 taxation year. When he was questioned about his actions further to the receipt of that letter, the applicant responded as follows:[1]
[TRANSLATION]
I do not remember receiving that letter. In any case, Mr. Bonhomme . . . That meant nothing to me. Mr. Castonguay is the person I wanted to talk to.
[6] Did the applicant comply with subsection 167(5) of the Act and is he entitled to an extension of the time to file his notice of appeal? Subsection 167(5) of the Act reads as follows:
167(5)
(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.
[7] The time for appealing under section 169 of the Act expired on February 4, 2004. The applicant filed his application to extend the time on May 31, 2004. Therefore, the application was submitted in the year following the expiration of the time set out in section 169 of the Act for appealing. Thus the applicant complied with paragraph 167(5)(a) of the Act.
[8] Before granting the application to extend the time for appealing, the Court must be convinced that, within the time limit for appealing (in this case, the time expired on February 4, 2004), the applicant was unable to act or to instruct another to act in his name, or he had a bona fide intention to appeal. These two conditions, which appear in subparagraph 167(5)(b)(i) of the Act, are disjunctive.
[9] The burden was on the applicant in this case to show, based on the balance of probabilities, that he had an intention to appeal before February 4, 2004.
[10] The applicant, who was to demonstrate that he had an intention to appeal within the set timeframe, presented evidence that consisted solely of his own testimony: according to his testimony, the applicant had believed that Mr. Castonguay was still taking care of his file; the applicant had called him a number of times and had gone to Mr. Castonguay's office three times without ever managing to speak to him. How could the applicant think that his counsel was looking after his file when he was not even able to speak to him or meet with him? I am of the opinion that, in such circumstances, a taxpayer who is the least bit wise and cautious would need to take other actions before the deadline. Indeed, if a taxpayer is not able to contact his counsel and he has a bona fide intention to appeal, he should either verify the status of his counsel with the Barreau du Québec, send a letter to his counsel so that he can have documentary evidence in his file, contact the Court or the tax authorities to obtain information on his file or how to appeal, or contact another counsel or any other person who can help him. The applicant did not take any of these steps prior to the deadline. The applicant's conduct with regard to the letter dated October 30, 2002, (Exhibit I-1) clearly shows his negligence and carelessness. How can the conduct of a taxpayer who does absolutely nothing when he is notified that he is no longer represented be explained otherwise?
[11] Was the application to extend the time made as soon as circumstances permitted? The evidence showed that the applicant had learned at the end of March 2004 that his counsel was no longer representing him, yet he did not make his application to extend the time until the end of May 2004, two months after he learned the bad news. The evidence did not reveal any special circumstances that explain this delay.
[12] For these reasons, I conclude that the application to extend the time must be dismissed.
Signed at Ottawa, Canada, this 12th day of October 2004.
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"Paul Bédard" |
Bédard J.
Translation certified true
on this 20th day of January 2005.
Colette Dupuis-Beaulne, Translator
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CITATION: |
2004TCC633 |
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COURT DOCKET NO.: |
2004-2449(IT)APP |
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STYLE OF CAUSE: |
André Lord and Her Majesty the Queen |
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PLACE OF HEARING: |
Montreal, Quebec |
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DATE OF HEARING: |
August 27, 2004 |
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REASONS FOR ORDER BY: |
The Honourable Justice Paul Bédard |
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DATE OF ORDER: |
October 12, 2004 |
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APPEARANCES: |
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For the Applicant: |
The Applicant Himself |
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For the Respondent: |
Simon Petit |
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COUNSEL OF RECORD: |
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For the Applicant: |
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Name: |
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Firm: |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |