Hugessen,
J.A.:—This
is
an
appeal
from
an
order
of
the
Tax
Court
of
Canada
dismissing
the
appellants
application
to
extend
the
time
for
filing
the
reply
to
the
notice
of
appeal.
Rule
44
of
the
Rules
of
the
Tax
Court
read
at
the
relevant
time
as
follows:
Time
for
Delivery
of
Reply
to
Notice
of
Appeal
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.
Rule
12
reads:
Extension
or
Abridgement
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.
In
dismissing
the
application
to
extend
time
the
Tax
Court
judge
said
in
the
Appeal
Book,
page
41
:
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.
We
are
all
of
the
view
that
the
Tax
Court
judge
erred
in
law.
There
can,
in
our
opinion,
be
quite
simply
no
doubt
that
Rule
12
applies
to
empower
the
Court
in
appropriate
circumstances
to
extend
the
time
fixed
by
Rule
44
after
such
time
has
expired.
As
a
matter
of
principle
courts
today
are
loath
to
let
procedural
technicalities
stand
in
the
way
of
allowing
a
case
to
be
decided
on
its
merits.
Form
must
not
prevail
over
substance.
As
a
matter
of
statutory
interpretation,
the
only
possible
support
for
the
position
taken
by
the
Tax
Court
judge
would
be
an
argument
a
contrario
from
the
somewhat
ambiguous
words
of
paragraph
44(2);
that
argument
must
fall
in
the
face
of
the
very
clear
words
of
paragraph
44(3)
and
the
general
and
unfettered
remedial
power
conferred
by
Rule
12.
There
can
also
be
no
doubt
in
our
minds
that
if
the
Tax
Court
judge
had
not
erred
in
law,
and
even
on
the
strict
construction
of
Rule
44
which
she
obviously
favoured,
she
would
necessarily
have
exercised
her
discretion
so
as
to
grant
the
requested
extension
of
time.
The
reply
to
the
notice
of
appeal
herein
was
in
fact
served
timely,
on
the
60th
day;
the
failure
to
file
it
the
same
day
was
due
to
the
unexplained
failure
to
carry
out
his
duties
by
a
subordinate
employee
in
the
solicitor’s
office,
namely
the
messenger
to
whom
the
filing
had
been
entrusted.
The
document
was
in
fact
proffered
for
filing
the
next
day.
Of
course
it
is
easy
to
say
now,
with
the
benefit
of
hindsight,
that
more
could
and
should
have
been
done
by
the
solicitor
to
ensure
that
the
reply
was
filed
on
time.
Even
if
we
accepted
the
very
strict
view
adopted
by
the
Tax
Court
with
regard
to
the
application
of
the
time
limit
in
Rule
44,
however,
(and
we
express
no
opinion
on
that
matter)
the
highest
the
test
could
be
put
would
not
be
to
ask
whether
everything
possible
had
been
done
but
rather
whether
what
was
done
was
reasonable
in
the
circumstances.
In
our
view
it
was.
The
respondent
can
suffer
no
important
prejudice
from
a
granting
of
the
extension.
In
the
context
of
this
litigation
the
addition
of
one
day
to
the
time
of
filing
(but
not
even
of
service)
of
the
reply
is
of
no
consequence.
The
fact
that
Revenue
Canada
may
have
been
slow
or
even
negligent
in
dealing
with
the
taxpayer's
file
at
earlier
stages,
while
regrettable,
is
not
relevant
to
the
issue
here.
The
appeal
will
be
allowed,
the
order
of
the
Tax
Court
will
be
set
aside
and
the
time
for
filing
the
reply
to
the
notice
of
appeal
will
be
extended
to
November
16,
1992.
There
will
be
no
order
as
to
costs.
Appeal
allowed.
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