Kempo,
T.C.C.J.:—The
respondent
on
motion
is
seeking
an
order
for
an
extension
of
time
within
which
to
file
a
reply
to
the
notice
of
appeal
of
Alfred
S.
Carew
(court
file
number
91-1503(IT)
and
to
the
notice
of
appeal
of
Arthur
V.
Carew
(court
file
number
91-1504(IT).
Henceforth
the
respondent
will
be
referred
to
to
as
the“
applicant”
and
the
Messrs.
Carew
will
be
collectively
called
the
"appellants".
The
appellants
were
self-represented
in
opposing
the
motion.
All
parties
agreed
to
the
matter
being
heard
in
common
as
to
both
appeals
because
identical
positions
were
being
advanced
respecting
each
appeal.
A
brief
recitation
of
the
essential
background
facts
is
warranted.
The
appellants
reside
in
Kanata,
Ontario
and
were
partners
in
a
purported
business
venture
located
in
the
Province
of
Newfoundland.
Each
was
reassessed
tax
for
the
taxation
years
ended
December
31,
1983,
1984
and
1985
by
Notice
dated
December
5,
1988.
Objection
to
the
reassessments
were
given
by
the
appellants
by
Notices
dated
February
26,
1989.
Notices
of
confirmation
of
the
reassessments
were
dated
April
16,
1991,
some
two
years
after
the
objections
were
advanced.
The
appellants’
respective
notices
of
appeal
were
filed
in
the
Ottawa
office
of
the
Court's
Registry
on
July
12,
1991,
copies
thereof
being
transmitted
to
the
office
of
the
Deputy
Attorney
General
of
Canada,
pursuant
to
subsection
17.2(3)
of
the
Tax
Court
of
Canada
Act,
("the
Tax
Court
Act’)
on
July
25,
1991.
The
general
procedure
provisions
of
the
Tax
Court
Act
are
applicable
to
these
appeals
as
filed
thus
attracting
the
provisions
of
the
Tax
Court
of
Canada
Rules
(General
Procedures),
hereafter
called
the
Rules.
The
time
extension
is
being
sought
because
of
the
applicant's
failure
to
file
a
Reply
in
the
Court's
Registry
to
the
appellants’
notices
of
appeal
within
60
days
after
July
25,
1991.
The
60th
day
expired
on
Monday,
September
23,1991.
The
replies
were
signed
and
served
upon
the
appellants
on
the
60th
day.
The
replies
were
submitted
to
the
Registry
for
filing
on
the
61st
day.
It
is
apt
to
reproduce
the
grounds
as
recited
in
the
applicant's
motion.
The
Grounds
for
the
motion
are
that
pursuant
to
subsection
12(1)
of
the
Rules
of
the
Tax
Court
of
Canada,
the
Court
may
extend
any
time
prescribed
by
the
Rules
on
such
terms
as
are
just,
and
pursuant
to
section
9
of
the
Rules,
the
Court
may,
where
and
as
necessary
in
the
interests
of
justice,
dispense
with
compliance
with
any
rule
at
any
time.
The
rules
The
following
Rules
are
of
immediate
applications
to
the
motion:
43.
(1)
In
an
appeal,
the
pleadings
shall
consist
of
the
notice
of
appeal,
the
reply
to
the
notice
of
appeal
called
"the
reply"..
.
.
44.
(1)
A
reply
shall
be
filed
and
served,
within
sixty
days
after
service
of
the
notice
of
appeal,
unless
the
appellant
consents
in
writing
to
an
extension
of
that
time
for
a
period
not
exceeding
an
additional
thirty
days.
(2)
The
respondent
may
apply
to
the
Court
within
the
sixty
days
referred
to
in
subsection
(1)
for
an
extension
of
the
time
for
filing
and
serving
a
reply
and
the
Court
may
grant
such
extension
as
it
considers
necessary.
(3)
Subsection
12(3)
has
no
application
to
this
section.
The
applicants
counsel
raised
and
relied
upon
the
following
Rules
in
support
of
the
motion:
4.
(1)
These
rules
shall
be
liberally
construed
to
secure
the
just,
most
expeditious
and
least
expensive
determination
of
every
proceeding
on
its
merits.
9.
The
Court
may,
only
where
and
as
necessary
in
the
interests
of
justice,
dispense
with
compliance
with
any
rule
at
any
time.
12.
(1)
The
Court
may
extend
or
abridge
any
time
prescribed
by
these
rules
or
a
direction,
on
such
terms
as
are
just.
(2)
A
motion
for
a
direction
extending
time
may
be
made
before
or
after
the
expiration
of
the
time
prescribed.
(3)
A
time
prescribed
by
these
rules
for
filing,
serving
or
delivering
a
document
may
be
extended
or
abridged
by
consent
in
writing.
The
applicable
parts
of
the
following
Rules
were
also
raised
by
one
or
both
parties
for
consideration:
18.
(1)
All
documents
.
.
.
may
be
filed
by
leaving
them
with
the
Registry
or
by
sending
them
by
registered
mail
or
by
fax.
(2)
Where
a
document
is
filed
by
.
.
.
fax,
the
date
of
.
.
.
transmission
shall
be
the
date
of
its
filing,
.
.
.
.
63.
(1)
When
a
reply
to
a
notice
of
appeal
has
not
been
filed
and
served
within
the
sixty
days
prescribed
under
subsection
44(1)
or
within
such
extended
time
as
may
be
granted
on
consent
of
the
appellant
or
by
the
Court
under
that
section,
the
appellant
may
apply
on
motion
for
judgment
in
respect
of
the
relief
sought
in
the
notice
of
appeal.
(2)
On
the
return
of
the
application
for
judgment
the
Court
may,
(a)
permit
the
filing
and
serving
of
the
reply,
(b)
direct
that
the
appeal
proceed
to
hearing
on
the
basis
that
the
facts
alleged
in
the
notice
of
appeal
are
presumed
to
be
true,
and
make
a
direction
regarding
the
hearing
fee.
(c)
allow
the
appeal
if
the
facts
alleged
in
the
notice
of
appeal
entitle
the
appellant
to
the
relief
sought,
or
(d)
give
such
other
direction
as
is
just
and
may
give
such
additional
directions
regarding
the
payment
of
costs
as
are
just.
(3)
The
presumption
in
paragraph
(2)(b)
is
a
rebuttable
presumption.
125.
(1)
Where
an
appeal
has
not
been
set
down
for
hearing
or
terminated
by
any
means
within
one
year
after
filing
the
reply
or
after
the
last
day
for
filing
the
reply,
whichever
is
later,
the
Chief
Judge
may
direct
the
Registrar
to
serve
.
.
.
a
notice
of
status
hearing
.
.
.
(5)
At
the
status
hearing
.
.
.
(b)
if
a
reply
has
not
been
filed,
the
judge
may,
(i)
direct
that
the
appeal
be
allowed
if
the
facts
alleged
in
the
notice
of
appeal
entitle
the
appellant
to
the
judgment
sought,
(ii)
direct
that
the
appeal
be
heard
on
the
basis
that
the
facts
alleged
in
the
notice
of
appeal
are
presumed
to
be
true
and
make
a
direction
regarding
the
hearing
fee,
or
(iii)
give
such
other
direction
as
is
just.
(6)
The
presumption
is
subparagraph
(5)(b)(ii)
is
a
rebuttable
presumption.
The
appellants
each
filed
affidavits
opposing
the
motion.
They
attested
to
a
litany
of
lengthy
delays
over
the
last
two
years
occasioned
by
officials
of
Revenue
Canada
(Taxation)
in
dealing
with
their
formal
objections,
they
alleged
prejudice
because
of
these
delays
and
the
six-year
passage
of
time
commencing
from
the
taxation
years
in
question,
and
they
emphasized
that
fax
was
available
for
the
applicants
use
to
ensure
compliance.
The
appellants
noted
for
the
Court's
attention
that
while
they
had
each
been
served
on
the
60th
day
in
Kanata
which
is
some
16
kilometres
from
the
Justice
office
in
Ottawa,
counsel
for
the
applicant
is
calling
for
ust
and
equitable
consideration
for
failure
to
file
in
the
Registry
office
which
is
only
two
blocks
away
from
that
office.
The
affidavit
filed
in
support
of
the
motion
was
made
by
Anne
Michaud,
a
lawyer
employed
by
the
Department
of
Justice
in
the
Tax
Litigation
Section.
She
attested
to
the
following:
—
she
had
not
received
Revenue's
departmental
material
until
Thursday
September
19
at
1:30
p.m.
because
it
had
been
misdirected
to
Halifax;
—
she
was
only
able
to
complete
the
replies
for
service
and
filing
on
Monday,
September
23
[i.e.
60th
day]
which
she
signed
at
approximately
11:15
a.m.;
—
on
information
and
belief:
(i)
the
office
person
responsible
for
incoming
and
outgoing
mail
had
picked
up
the
replies
at
1:00
p.m.
that
day
and
had
given
them
to
the
messenger
who
makes
by-hand
deliveries
to
the
court
registry,
(ii)
on
enquiry,
the
customary
practice
of
the
messengers
with
respect
to
Tax
Court
filings
was
that
they
travel
there
daily
at
10:00
a.m.
and
again
at
3:00
p.m.;
and
(iii)
that
a
messenger
went
to
the
Tax
Court
to
file
documents
at
approximately
3:00
p.m.
on
September
23;
—
she
was
advised
by
a
Registry
official
on
September
26
that
the
replies
were
received
by
the
Court
at
approximately
3:36
p.m.
on
September
24
and
that
it
could
not
be
filed
due
to
the
expiration
of
time;
—
on
September
26,
by
telephone,
she
sought
the
consent
of
the
appellants
to
an
extension
of
time
to
file
the
Replies,
which
was
refused.
Counsel
for
the
applicant
emphasized
that
the
appellants
had
been
served
in
time
and
therefore
they
were
not
prejudiced.
One
half
of
Rule
44(1)
had
been
complied
with,
and
it
was
only
an
"administrative
oversight”
which
had
caused
the
failure
to
comply
with
the
other
half
which
was
remedied
the
next
day.
The"only-one-day"
lateness
was
emphasized,
and
the
failure
to
file
was
expressed
to
be
"minor"
in
nature
deserving
of
modest
accommodation.
Further,
there
was
a
filing
system
in
place
and
it
is
reasonable
that
the
applicant
be
entitled
to
assume
the
system
would
work.
The
appellants
observed
that
the
system
had
failed
twice,
once
on
the
afternoon
of
the
60th
day
and
again
on
the
morning
of
the
61st
day.
The
nub
of
counsel’s
submission
as
I
understand
it
was
that
Rule
44
stands
in
pari
passu
with
Rule
12(1)
and
Rule
4(1),
the
latter
calling
for
a
liberal
construction
is
to
be
given
“to
secure
the
just,
most
expeditious
and
least
expensive
determination
of
every
proceeding
on
its
merits".
Rule
12(1)
is
very
broad
and
wide
ranging,
and
may
be
applied
to
assuage
the
harshness
of
Rule
44
in
deserving
circumstances
such
as
those
present.
Additionally,
and
continuing
in
this
line
of
reasoning,
it
would
not
be
inappropriate
to
grant
the
time
extension
sought
at
this
time
as
Rule
63(2)
itself
contemplates
late
filing
and
service
of
a
reply
as
one
of
the
remedies
in
circumstances
where
Rule
44
has
been
breached.
In
contrast
no
such
remedy
is
available
in
a
status
hearing
under
Rule
125(5)(b).
Analysis
Reposed
in
the
Court
is
an
inherent
and
overriding
power
to
alleviate
against
the
strict
application
of
Rule
44.
However
to
exercise
that
power
with
respect
to
that
Rule
in
matters
other
than
those
of
highly
unusual,
very
exceptional
or
non-contemplated
circumstances
would,
in
my
view,
trivialize
it.
Rule
44
stands
by
itself.
It
is
precise
and
unambiguous.
It
is
especially
targeted
to
the
filing
and
service
of
replies.
Rule
12(1),
while
of
equal
standing,
does
not
operate
to
impinge
on
the
time
limitations
mandated
by
Rule
44.
To
hold
otherwise
would
allow
the
general
rule
to
diminutize
the
specific
rule.
This
too
would
beget
trivialization
of
Rule
44.
Rule
63(2)(a)
merely
purports
to
recognize
that
in
a
proper
case
it
may
well
be
just
approach
in
all
of
the
circumstances
to
permit
the
late
filing
and
service
of
a
Reply
upon
that
occasion.
The
matter
respecting
its
absence
in
the
status
hearing
rule,
Rule
125(5)(b),
is
an
invitation
for
mere
speculation
to
which
I
decline.
Counsel
has
described
the
matter
at
hand
as
an
application,
not
being
prejudicial
to
the
appellants,
for
an
accommodation
to
make
right
a
mere
administrative
oversight
so
as
to
allow
the
appeals
to
move
ahead
expeditiously
on
its
merits.
This
submission
conveniently
ignores
the
favourable
evidentiary-
burden
advantage
that
would
be
enjoyed
by
these
appellants
if
their
appeals
were
to
be
determined
in
the
absence
of
the
respondent's
replies.
A
new
regime
has
been
put
in
place
commencing
1991.
In
my
opinion
acquiescence
to
the
motion
in
the
circumstances
of
this
case
would
amount
to
an
unjustifiable
emasculation
of
Rule
44.
That
the
requested
accommodation
may
have
been
extended
under
the
previous
Rules
of
the
Court
is
history.
The
applicant's
motion
is
dismissed.
An
ancillary
matter
remained.
In
their
opposing
affidavits,
the
appellants
purported
to
invoke
the
provisions
of
Rule
63
via
an
oral
motion
for
judgment
to
be
made
at
the
time
of
the
applicant's
motion.
Their
affidavits
made
no
reference
either
to
the
particular
remedy
being
sought
or
to
the
reasons
or
supporting
material
to
be
relied
upon
therefor.
Counsel
for
the
applicant
had
not
addressed
this
matter
in
any
way
prior
to
the
hearing.
The
Court
informed
the
appellants
of
the
Rules
respecting
motions
and
their
attendant
procedural
requirements
and
that
they
had
not
made
out
a
proper
case
justifying
the
waiver
of
the
Rules
by
the
Court
in
their
favour.
Costs
are
discretionary,
and
it
is
my
order
that
costs
in
this
case
be
in
the
cause.
Normally
the
costs
follow
the
event.
Here
the
motion,
while
unsuccessful,
was
not
frivolous.
An
order
will
therefore
go
dismissing
the
motion
with
costs
in
the
cause.
Appeal
dismissed.
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