Urie,
J:—This
is
one
of
two
appeals
heard
together,
from
orders
of
Grant,
DJ
of
the
trial
division
whereby
firstly
he
ordered
that
the
time
within
which
an
appeal
may
be
instituted
by
the
respondent
from
a
decision
of
the
Tax
Review
Board
be
extended
to
September
10,
1978
and
whereby
secondly
he
dismissed
the
appellant’s
motion
to
strike
out
the
respondent’s
statement
of
claim.
Briefly
put
the
relevant
facts
follow.
The
appellant
appealed
to
the
Tax
Review
Board
from
an
assessment
to
income
tax
for
his
1971
taxation
year,
which
appeal
was
allowed
by
a
judgment
mailed
to
the
parties
on
April
24,
1978.
The
respondent
filed
a
statement
of
claim
in
the
trial
division
on
August
23,
1978.
It
is
common
ground
that
the
statement
of
claim
had
been
filed
on
the
121st
day
from
the
date
of
mailing
of
the
Board’s
judgment.
On
september
13,
1978
the
respondent
moved
for
an
Order
under
Court
No
T-3790-78
extending
the
time
within
which
the
appeal
might
be
instituted.
The
appellant
then
moved
under
Court
No
T-3790-78,
for
an
order
striking
out
the
statement
of
claim
on
the
ground
that
it
had
not
been
filed
within
the
time
limited
by
section
173*
of
the
Income
Tax
Act
for
bringing
the
appeal.
Grant,
DJ
granted
the
respondent’s
motion
and
dismissed
the
ap-
pellant’s
motion,
both
without
reasons.
It
is
from
these
orders
that
these
two
appeals
are
brought.
The
respondent
seeks
to
uphold
the
orders
on
the
basis
that:
1.
The
statement
of
claim
was
filed
within
the
time
limit
on
the
footing
that
under
paragraph
3(1)(b)
of
the
Federal
Court
Rules
the
time
for
filing
does
not
run
during
Long
Vacation;
2.
in
any
event,
the
time
for
filing
the
statement
of
claim
may
be
extended
under
Rule
3(1
)(c)
of
the
Rules
of
this
Court;
and
3.
in
the
further
alternative,
the
court
had
the
power
to
extend
the
time
for
filing
the
statement
of
claim
by
virtue
of
section
167
of
the
Income
Tax
Act.
The
appellant,
of
course,
challenges
the
respondent’s
view
on
the
applicability
of
the
court’s
rules
before
the
institution
of
an
appeal
particularly
because
of
the
existence
of
the
statutory
limitation
period
under
section
172
of
the
Act
and
further
because
of
the
fact
that,
while
section
167
provides
a
means
whereby
a
taxpayer
may
apply
to
the
trial
division
for
an
order
extending
the
time
within
which
such
appeal
may
be
instituted,
no
such
right
to
apply
for
an
extension
is
given
to
the
respondent
by
that
or
any
other
section
of
the
Act.
The
rules
of
the
court
and
the
section
of
the
Act
in
issue
read
as
follows:
Rule
3(1)
Unless
the
contrary
otherwise
appears,
the
computation
of
time
under
these
Rules,
or
under
any
other
or
judgment
of
the
Court,
is
governed
by
section
25
of
the
Interpretation
Act,
chapter
7
of
1967,
which
reads:
.
.
.
and
by
the
following
provisions:
(b)
subject
to
Rule
402(3),
the
time
of
the
Long
and
Christmas
Vacations
shall
not
be
reckoned
in
the
computation
of
the
time
for
filing,
amending
or
serving
any
pleading
or
other
document,
unless
otherwise
directed
by
the
Court,
(c)
the
Court
may
enlarge
or
abridge
the
time
appointed
by
these
Rules,
or
fixed
by
any
order,
for
doing
any
act
or
taking
any
proceeding
upon
such
terms,
if
any,
as
seem
just,
and
any
such
enlargement
may
be
ordered,
although
the
application
for
the
same
is
not
made
until
after
the
expiration
of
the
time
appointed
or
fixed.
Section
167(1)
Where
no
objection
to
an
assessment
under
section
165
or
appeal
to
the
Tax
Review
Board
under
section
169
has
been
made
or
instituted
within
the
time
limited
by
section
165
or
169,
as
the
case
may
be,
for
doing
so,
an
application
may
be
made
to
the
Tax
Review
Board
for
an
order
extending
the
time
within
which
a
notice
of
objection
may
be
served
or
an
appeal
instituted
and
the
Board
may,
if
in
its
opinion
the
circumstances
of
the
case
are
such
that
it
would
be
just
and
equitable
to
do
so,
make
an
order
extending
the
time
for
objecting
or
appealing
and
may
impose
such
terms
as
it
deems
just.
(2)
The
application
referred
to
in
subsection
(1)
shall
set
forth
the
reasons
why
it
was
not
possible
to
serve
the
notice
of
objection
or
institute
the
appeal
to
the
Board
within
the
time
otherwise
limited
by
this
Act
for
so
doing.
(3)
An
application
under
subsection
(1)
shall
be
made
by
filing
with
the
Registrar
of
the
Tax
Review
Board
or
by
sending
by
registered
mail
addressed
to
him
at
Ottawa
3
copies
of
the
application
accompanied
by
3
copies
of
a
notice
of
objection
or
notice
of
appeal,
as
the
case
may
be.
(4)
Where
no
appeal
to
the
Federal
Court
of
Canada
under
section
172
has
been
instituted
within
the
time
limited
by
that
section,
an
application
may
be
made
to
the
Federal
Court
of
Canada
by
notice
filed
in
the
Court
(and
served
on
the
Deputy
Attorney
General
of
Canada
at
least
14
days
before
the
application
is
returnable)
for
an
order
extending
the
time
within
which
such
appeal
may
be
instituted
and
the
Court
may,
if
in
its
opinion
the
circumstances
of
the
case
are
such
that
it
would
be
just
and
equitable
to
do
so,
make
an
order
extending
the
time
for
appealing
and
may
impose
such
terms
as
it
deems
just.
(5)
No
order
shall
be
made
under
subsection
(1)
or
(4)
(a)
unless
the
application
to
extend
the
time
for
objecting
or
appealing
is
made
within
one
year
after
the
expiration
of
the
time
otherwise
limited
by
this
Act
for
objecting
to
or
appealing
from
the
assessment
in
respect
of
which
the
application
is
made;
(b)
if
the
Board
or
Court
has
previously
made
an
order
extending
the
time
for
objecting
to
or
appealing
from
the
assessment;
and
(c)
unless
the
Board
or
Court
is
satisfied
that,
(i)
but
for
the
circumstances
mentioned
in
subsection
(1)
or
(4),
as
the
case
may
be,
an
objection
or
appeal
would
have
been
made
or
taken
within
the
time
otherwise
limited
by
this
Act
for
so
doing,
(ii)
the
application
was
brought
as
soon
as
circumstances
permitted
it
to
be
brought,
and
(iii)
there
are
reasonable
grounds
for
objecting
to
or
appealing
from
the
assessment.
We
are
all
of
the
opinion
that
the
contentions
of
appellant’s
counsel
are
correct
and
that
the
learned
motions
judge
thus
erred
in
granting
that
extension
of
time
to
file
the
statement
of
claim
and
consequently,
in
refusing
to
strike
it
out.
It
will
be
noted
that
the
opening
words
of
Rule
3(1)
are
“Unlesss
the
contrary
otherwise
appears
the
computation
of
time
under
these
rules
..(emphasis
added).
The
computation
of
time
for
instituting
an
appeal
under
the
Income
Tax
Act
is
made
pursuant
to
that
Act
and
is
not
made
under
the
rules.
It
is
clear,
therefore,
that
clause
(b)
of
Rule
3(1)
relating
to
the
exclusion
of
Long
and
Christmas
Vacations
in
the
computation
of
times
can
have
no
applicability
to
the
computation
of
time
under
the
Income
Tax
Act
for
the
institution
of
an
appeal.
By
the
same
reasoning,
Rule
3(1)(c)
permitting
enlargement
or
abridgment
of
the
time
“appointed
by
these
Rules"
can
have
no
application.
Both
rules
apply
only
after
an
appeal
or
action
has
been
instituted.
The
time
appointed
in
this
case
was
under
the
Act
not
under
the
Rules.
Turning
now
to
section
167
of
the
Act
it
is,
in
our
view,
abundantly
clear
that
subsection
4
applies
only
to
a
taxpayer
who
seeks
an
extension
of
time
for
the
institution
of
an
appeal.
We
reach
this
conclusion
from
the
following
aids
in
the
construction
of
the
section:
(1)
Subsection
167(4)
provides
for
service
of
the
notice
of
application
for
an
extension
of
time
on
the
Deputy
Attorney
General
of
Canada
within
14
days
before
the
return
date
of
the
motion.
This
mandatory
provision
is
patently
inappropriate
in
the
case
of
an
appeal
by
Her
Majesty,
who
is
represented
in
court
by
the
Deputy
Attorney
General
and
thus
in
our
view
indicates
that
the
section
applies
only
to
an
appeal
by
a
taxpayer.
(2)
Subsection
(5)(a)
and
(5)(b)
of
section
167
refer
to
“objecting
to
or
appealing
from
the
assessment
.
.
(emphasis
added).
Only
the
taxpayer
objects
to
or
appeals
from
an
assessment—not
the
respondent.
(3)
Subparagraph
(5)(c)(iii)
of
section
167
requires
that
there
be
reasonable
grounds
“for
objecting
to
or
appealing
from
the
assessment’’.
That
requirement
is
appropriate
only
to
a
taxpayer’s
appeal
even
where
the
appeal
is
from
a
decision
of
the
Tax
Review
Board
since
such
an
appeal
is
a
trial
de
novo
and
is,
therefore,
an
appeal
from
the
assessment,
in
essence.
From
all
the
above
it
is
obvious
that
Parliament,
having
given
a
lengthy
delay
of
120
days
to
institute
an
appeal,
intended
to
extend
the
privilege
of
seeking
an
extension
of
such
delay
only
to
a
taxpayer
and
not
the
the
respondent,
possibly
to
achieve
some
degree
of
finality
in
income
tax
proceedings
for
the
sometimes
beleagured
taxpayer.
It
is
trite
to
say
that
we
cannot
change
the
legislation.
Accordingly,
the
appeal
will
be
allowed,
the
order
of
the
trial
division
set
aside
and
the
respondent’s
application
for
extension
of
time
will
be
dismissed
with
costs
here
and
below.
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