Le Bel v. The Queen, 87 DTC 5327, [1987] 2 CTC 86 (FCTD)

Teitelbaum, J.:—This is an application by the plaintiff, Pierre J. LeBel (LeBel) wherein the said LeBel requests an order of the Federal Court extending the time for filing of a Notice of Appeal from the Judgment of Mr. Justice Collier dated February 25, 1987, from 30 days to 90 days.

The plaintiff relies on section 27(2) of the Federal Court Act as the ground upon which he is presently making his application.

The plaintiff appealed a decision of the Tax Court of Canada. The appeal of the decision of the Tax Court of Canada was heard by Mr. Justice Collier on the 24th day of February 1987. Mr. Justice Collier delivered his reasons for judgment on February 25, 1987.

According to the affidavit of Joachim D. Mattes, an associate in the law firm of Hobson, Jenkins and Associates, on or about March 16, 1987, LeBel requested advice of the law firm as to the limitation period for an appeal from the February 25, 1987 judgment.

During the week of March 16, 1987, Mattes made unsuccessful attempts to contact LeBel by telephone to advise him of the limitation period. On March 20, 1987, Mattes forwarded letters to LeBel’s home and office advising him of the limitation period to appeal Mr. Justice Collier’s judgment.

It was not until March 27, 1987 that Mattes received a telephone call from LeBel who stated he was out of town and had only received the correspondence on that day. LeBel then requested an opinion as to his chances of success with respect to an appeal. The opinion was provided on April 1, 1987. On the same day as receiving the opinion, LeBel gave instructions to proceed with the appeal.

The defendant refuses to give her consent to the present application. In fact, the defendant seriously contests the present request for the extension of delay to file a notice of appeal.

Section 27 of the Federal Court Act deals with the question of appeals from judgments of the Trial Division. The judgment delivered by Mr. Justice Collier on February 25, 1987 is a final judgment of the Trial Division. In relation to appeals to the Federal Court of Appeal from any final judgment of the Trial Division, section 27 states:

Section 27. APPEALS FROM TRIAL DIVISION

(1) An appeal lies to the Federal Court of Appeal from any

(a) final judgment,

(b) judgment on a question of law determined before trial, or

(c) interlocutory judgment,

of the Trial Division.

(2) Notice of Appeal — An appeal under this section shall be brought by filing a notice of appeal in the Registry of the Court,

(a) in the case of an interlocutory judgment, within ten days, and

(b) in the case of any other judgment within thirty days (in the calculation of which July and August shall be excluded),

from the pronouncement of the judgment appealed from or within such further time as the Trial Division may, either before or after the expiry of those ten or thirty days, as the case may be, fix or allow.

(3) Service — All parties directly affected by the appeal shall be served forthwith with a true copy of the notice of appeal and evidence of service thereof shall be filed in the Registry of the Court.

(4) Final judgment — For the purposes of this section a final judgment includes a judgment that determines a substantive right except as to some question to be determined by a referee pursuant to the judgment.

Therefore, a notice of appeal from a final judgment must be filed in the Registry within 30 days of the delivery from its pronouncement or within such further delay as the Trial Division may fix or allow.

In virtue of the words “within such further time as the Trial Division may, . . . fix or allow", a judge of the Trial Division is given the discretion to extend the 30-day delay in which a litigant may file a notice of appeal.

The issue is to determine what, if any, circumstances must exist for the judge of the Trial Division to exercise his or her discretion to extend the delay to file a notice of appeal.

Plaintiff's counsel submits four cases for my consideration as to what circumstances may exist in order for me to allow the extension of time herein requested.

Counsel for LeBel is of the belief that defendant's submission is a technical one. He believes that LeBel acted promptly upon receiving advice as to his chances on his appeal. LeBel was only three or four days outside of his delay to appeal and should not be deprived of his right to appeal. Counsel submitted the case of Can usa Records Inc. et al. v. Blue Crest Music, Inc. et al. (1975), 20 C.P.R. (2d) 53 (F.C.A.) as authority that a right to appeal should not be lost on a technicality.

Chief Justice Jackett at page 60 states:

In so far as the motion to strike out is concerned, it would seem, on the fact of it, to be barren of merit, except, possibly, technical merit. There is nothing to indicate that the respondents have suffered by lack of service or that they communicated with the solicitors for the appellants and indicated that they had not received the notice of motion. They do not suggest that the appeal, if properly brought, is not fairly arguable.

[Emphasis is mine.]

In the Canusa case, the appellant filed a notice of appeal in the Registry of the Court within the delay of 30 days but failed to serve a copy of the notice of appeal "forthwith" on the respondent as subsection 27(3) requires.

The facts in the Canusa case are very different than the facts in the present case. In the case at bar, the plaintiff failed to file the notice of appeal in the Registry within the 30-day delay. This failure is not a technicality.

I am in full agreement with counsel for plaintiff when he states that a litigant should not lose his right to appeal on a technicality as this does not further the ends of justice.

I am also of the belief that the failure to file a notice of appeal within the delays is not a question of “technicality” but is a matter of procedural law and thus, special circumstances must be shown to exist in order to obtain an extension of time to file a notice of appeal.

Counsel for LeBel submitted the case of The Queen v. Guaranteed Homes Limited, [1979] C.T.C. 190; 79 D.T.C. 5136 (F.C.T.D.) for the proposition that justice must be done and, I would add, must seem to have been done.

There is no doubt that one of the prime considerations in the Court using its discretion is the issue that “justice be done” but the "justice" must be for all the parties to the proceedings.

In the Guaranteed Homes case, Deputy Judge Smith states at page 191 (D.T.C. 5136), in speaking of the power to grant an extension of delay:

The power of the Court to grant an extension of time to appeal is discretionary. There are no rigid rules for determining when the extension should be granted. The decision is always to be made on the circumstances of the particular case, but there are guides to assist the Court in reaching the right decision. Thus in a number of cases it has been stated that the fundamental principle is to see that justice is done.

In dealing with the question of when to grant an extension of time to file an appeal, Deputy Judge Smith gives the following as criteria to be considered (see pages 191-93) (D.T.C. 5137-38):

(a) the Applicant must show a bona fide intention to appeal when he had the right to appeal;

(b) that his failure to appeal within the delay was the result of a special circumstance which serves to excuse or justify such failure.

(c) it must be at least arguable that the judgment appealed from is wrong.

In relation to the question of bona fides of the Applicant for an extension of time to appeal the Courts have frequently stated that the Applicant must show a bona fide intention to appeal while the right of appeal existed. Thus, in Cairns v. Cairns 1931, 3 W.W.R. 335, McGillivray J.A., for the majority of the Alberta Court of Appeal, said at p. 343:

Turning again to a consideration of the affidavit, I think it was incumbent upon the applicant to show a bona fide intention to appeal while the right to appeal existed and that the failure to appeal was by reason of some very special circumstance which serves to excuse or justify such failure.

[Emphasis is mine.]

Deputy Judge Smith then states, at page 193 (D.T.C. 5138):

So far as the merits of an application for an extension of time to appeal are concerned, it must be at least arguable that the judgment appealed from is wrong.

Did LeBel show a bona fide intention to appeal the judgment of Mr. Justice Collier when he had a right to do so? Did LeBel fail to file his notice of appeal within the delay because of a special circumstance which can serve to excuse or justify his failure? Did LeBel submit any evidence that the judgment that he wishes to appeal from is wrong?

After verifying the evidence before me, the Affidavit of Joachim D. Mattes, I can come to no other conclusion than to reply in the negative to all of the above questions.

I am in agreement with counsel for LeBel that the defendant will not suffer a prejudice by the 4 or 5 day delay in the filing of the notice of appeal.

The question of prejudice is only one element to be considered. LeBel must also show intention and excuse.

This he has failed to do.

During the 30 days following the judgment of Mr. Justice Collier, LeBel was only concerned with the delays in which to file his appeal.

3. On or about the 16th day of March, 1987, the Plaintiff, Pierre LeBel, requested the advice of our law firm as to the limitation period for an appeal from the said judgment of the trial division delivered on February 25, 1987.

(Paragraph 3, Affidavit of Mattes)

After the delay to appeal had expired, March 27, 1987, LeBel requested an opinion, as he should have done within the 30-day delay, as to his chances with an appeal. On April 1, 1987, he was given the opinion and decided to appeal.

6. On March 27, 1987, I received a telephone call from Mr. LeBel indicating that he had been out of town and had only that morning received my correspondence to him of March 20, 1987.

7. Mr. LeBel immediately requested our law firm to provide him with an opinion as to his chances of success with respect to an appeal to the Federal Court of Appeal and this was provided to Mr. LeBel on or about April 1, 1987 at which time Mr. LeBel instructed us to proceed with an appeal to the Federal Court of Appeal.

(Paragraphs 6 and 7, Affidavit of Mattes)

In the affidavit of Mattes, no mention is made as to why the judgment of Mr. Justice Collier is wrong.

Therefore, the intention to appeal was only formulated by LeBel after the delay to appeal had expired. The mere fact that the delay to appeal had expired by only 3 or 4 days and that defendant suffers no prejudice is not sufficient reason to grant an extension. The other elements, above mentioned, must also be present.

It is truly unfortunate that LeBel was out of town on March 20, 1987, when Mattes’ correspondence was delivered to his home and office, but this, in my opinion, is not a justifiable excuse. If LeBel was truly concerned about his desire to appeal, he would have or should have informed his legal counsel as to his whereabouts.

The motion is dismissed, with costs.

Motion dismissed.