Citation: 2013 TCC 77
Date: 20130306
Docket: 2012-3416(GST)APP
BETWEEN:
JACQUES BOLDUC,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR ORDER
Paris J.
[1]
This is an application
for extension of time to object to a reassessment made November 18, 2010, pursuant
to the Excise Tax Act (the ETA).
[2]
This case is unusual
because of the discrepancy between the English and French wording of paragraph 304(5)(b)
of the ETA, which lists the conditions an applicant must meet in order to
obtain an extension of time to object. The French version states:
(5)
Acceptation de la demande — Il n'est fait droit à la demande que
si les conditions suivantes sont réunies :
a) la demande a été présentée en
application du paragraphe 303(1) dans l’année suivant l’expiration du
délai par ailleurs imparti pour faire opposition ou présenter la requête en
application du paragraphe 274(6);
b) la personne démontre ce qui suit :
(i)
dans le délai d'opposition par ailleurs imparti, elle n'a pu ni agir ni
mandater quelqu'un pour agir en son nom, ou avait véritablement l'intention de
faire opposition à la cotisation ou de présenter la requête,
(ii)
compte tenu des raisons indiquées dans la demande et des circonstances de
l'espèce, il est juste et équitable de faire droit à la demande,
(iii)
la demande a été présentée dès que les circonstances le permettaient,
(iv) l'opposition est raisonnablement fondée.
[3]
The English version
states:
(5)
When application to be granted — No application shall be granted under this
section unless
(a)
the application was made under subsection 303(1) within one year after the
expiration of the time otherwise limited by this Part for objecting or making a
request under subsection 274(6), as the case may be; and
(b)
the person demonstrates that
(i)
within the time otherwise limited by this Act for objecting,
(A)
the person was unable to act or to give a mandate to act in the person’s name,
or
(B)
the person had a bona fide intention to object to the assessment or make
the request,
(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, and
(iii)
the application was made under subsection 303(1) as soon as circumstances
permitted it to be made.
[4]
The French version of
paragraph 304(5)(b) includes a condition in subparagraph (iv) that is
not found in the English version. This is important because the respondent's
main argument in this case is that the applicant did not demonstrate that there
were reasonable grounds for his objection.
[5]
This discrepancy only became
clear to me when I began drafting these reasons. The parties did not raise the
issue and I believe they were not aware of it. Since the procedure to resolve
the interpretive issue this discrepancy raises is clear, I did not ask the
parties to submit arguments on the subject.
[6]
In Canada v. Daoust, the
Supreme Court of Canada explained the procedure for interpreting bilingual
statutes:
27 There
is, therefore, a specific procedure to be followed when interpreting bilingual
statutes. The first step is to determine whether there is
discordance. If the two versions are irreconcilable, we must rely on
other principles: see Côté, supra, at p. 327. A
purposive and contextual approach is favoured: see, for example, Bell
ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559,
2002 SCC 42, at para. 26; Chieu v. Canada (Minister of Citizenship
and Immigration), [2002] 1 S.C.R. 84, 2002 SCC 3, at
para. 27; R. v. Sharpe, [2001] 1 S.C.R. 45,
2001 SCC 2, at para. 33.
28 We must determine whether
there is an ambiguity, that is, whether one or both versions of the statute are
“reasonably capable of more than one meaning”: Bell ExpressVu, supra,
at para. 29. If there is an ambiguity in one version but not the
other, the two versions must be reconciled, that is, we must look for the
meaning that is common to both versions: Côté, supra, at p.
327. The common meaning is the version that is plain and not
ambiguous: Côté, supra, at p. 327; see Goodyear Tire and
Rubber Co. of Canada v. T. Eaton Co., [1956] S.C.R. 610, at p. 614; Kwiatkowsky
v. Minister of Employment and Immigration, [1982] 2 S.C.R. 856,
at p. 863.
29 If neither version is
ambiguous, or if they both are, the common meaning is normally the narrower
version: Gravel v. City of St-Léonard, [1978]
1 S.C.R. 660, at p. 669; Pfizer Co. v. Deputy Minister of
National Revenue For Customs and Excise, [1977] 1 S.C.R. 456, at
pp. 464-65. Professor Côté illustrates this point as follows, at
p. 327:
There is a
third possibility: one version may have a broader meaning than another,
in which case the shared meaning is the more narrow of the two.
30 The second step is to
determine whether the common or dominant meaning is, according to the ordinary
rules of statutory interpretation, consistent with Parliament’s intent:
Côté, supra, at pp. 328-329. At this stage, the words of
Lamer J. in Slaight Communications Inc. v. Davidson, [1989]
1 S.C.R. 1038, at p. 1071, are instructive:
First
of all, therefore, these two versions have to be reconciled if possible.
To do this, an attempt must be made to get from the two versions of the
provision the meaning common to them both and ascertain whether this appears to
be consistent with the purpose and general scheme of the Code.
31 Finally, we must also bear in mind that some principles of
interpretation may only be applied in cases where there is an ambiguity in an
enactment. As Iacobucci J. wrote in Bell ExpressVu, supra,
at para. 28: “Other principles of interpretation — such as the strict
construction of penal statutes and the ‘Charter values’ presumption —
only receive application where there is ambiguity as to the meaning of a
provision.”
[7]
In this case the
conditions in both versions are clear and unambiguous. As a result, according
to paragraph 29 of Daoust, supra, it is the more restrictive version
that applies. Obviously, the English version of paragraph 304(5)(b) has
the more narrow meaning.
[8]
As for the second step
in interpreting paragraph 304(5)(b), in my opinion, the English version
is consistent with Parliament's intent. In the parallel provision regarding
applications for extensions of time to object addressed to the Minister of
National Revenue, section 303 of the ETA, the conditions for granting the
application listed at paragraph 303(7)(b) are all but identical to the
three conditions listed at subparagraphs 304(5)(b)(i), (ii) and (iii) in
both the English and French versions of subsection 304(5). Moreover, in the
English and French versions of sections 166.1 and 166.2 of the Income
Tax Act, (the ITA) on applications for extensions of time to object
to an assessment made pursuant to that Act addressed to the Minister (section 166.1)
or to the Tax Court of Canada (section 166.2), the conditions for granting
the application are the same as those found at subparagraphs 304(5)(b)(i),
(ii) and (iii) and paragraph 303(7)(b) of the ETA. In other words,
the fourth condition, that the objection must have reasonable grounds, is not
found in any of the parallel provisions of the ETA or the ITA. This leads me to
conclude that Parliament did not intend to add this fourth condition for cases
of extensions of time to object addressed to the Court.
[9]
I also note that such a
condition appears in both English and French versions of the provisions
regarding applications for extension of time to file a notice of appeal
to the Court, namely subsections 305(5) of the ETA and 167(5) of the ITA;
both versions of these provisions are consistent on this issue.
[10]
For these reasons, I
find that the applicant is not required to demonstrate reasonable grounds for
his objection.
[11]
Moreover, I am
convinced that the applicant meets the other conditions at subsection 304(5). The
time for objecting to an assessment made pursuant to the ETA is 90 days.
The applicant testified at the hearing of his application that he could not
file his objection in the 90 days following the issuance of the notice of
assessment (deadline that expired on February 15, 2012) because he travelled frequently
for his work and was only home on weekends. At some times during the year, he
could be away from home for periods of up to two weeks. He said he took care of
the paperwork related to his job on weekends, but it was difficult to stay up
to date because of his workload. However, he always had the intention to object
to the assessment. This intention is sufficient to meet the condition at
subparagraph 304(5)(b)(i). I also accept that the application addressed
to the Court, submitted 31 days after the Minister's refusal to allow an
extension of time, was submitted as soon as circumstances allowed. As such, the
applicant met the condition at subparagraph 304(5)(b)(iii). In the circumstances,
I also find that it would be just and equitable to grant the application.
[12]
For these reasons, the
application for extension of time is allowed.
Signed at Ottawa,
Canada, this 6th day of March 2013.
"B. Paris"
Translation
certified true
on this 10th day
of April 2013.
Elizabeth Tan,
Translator
Email this Content