Garon,
T.C.C.J.:—By
his
motion,
the
applicant
is
seeking
an
order:
1.
(a)
for
default
judgment
pursuant
to
paragraph
63(2)(c)
of
the
Tax
Court
Rules;
or,
failing
(a),
(b)
for
a
direction
pursuant
to
paragraph
63(2)(b)
of
the
Tax
Court
Rules
that
this
appeal
be
heard
on
the
basis
that
the
facts
alleged
in
the
Notice
of
Appeal
are
presumed
to
be
true;
2.
that
the
hearing
fee
in
this
matter
be
paid
to
the
Applicant;
and
3.
that
the
costs
of
the
application
in
any
event
be
payable
forthwith
to
the
Applicant.
The
grounds
for
the
motion,
as
spelled
out
in
the
notice
of
motion,
are
"that
the
respondent
has
failed
to
file
a
reply
to
the
notice
of
appeal
within
the
time
limits
provided
in
section
44”
of
the
Tax
Court
of
Canada
Rules
(General
Procedure).
Some
of
the
facts
in
support
of
this
motion
are
set
out
in
an
affidavit
of
Jennifer
J.
Smith,
an
associate
lawyer
at
the
law
firm
of
Fraser
&
Beatty,
solicitors
for
the
applicant.
Also
a
statement
of
agreed
facts
was
tendered
on
the
hearing
of
this
motion.
The
key
facts
are
that
the
reply
to
the
notice
of
appeal
was
filed
with
the
Registry
of
this
Court,
three
days
after
the
expiry
of
the
period
of
time
set
out
in
section
44
of
the
above-mentioned
Rules
for
filing
a
reply.
The
reason
for
the
respondent's
tardiness
in
filing
the
reply
was
that
the
counsel
to
whom
the
matter
had
been
assigned,
according
to
the
statement
of
agreed
facts,
had
“miscalculated
the
60
day
period,
which
expired
on
May
5,
1992,
and
not
on
May
8,
1992,
as
he
had
calculated”.
It
has
also
become
apparent
on
the
hearing
of
this
motion,
that
some
of
the
questions
of
fact
raised
in
the
notice
of
appeal
dated
March
3,
1992,
are
in
dispute
between
the
parties.
Counsel
for
the
applicant
relied
on
the
decisions
of
this
Court
in
the
case
of
Carew
v.
Canada,
[1992]
2
C.T.C.
2069,
92
D.T.C.
1291,
and
Discovery
Research
Systems
Inc.
v.
Canada,
[1992]
1
C.T.C.
2394,92
D.T.C.
1306,
and
submitted
that
the
respondent
should
be
held
to
the
strict
requirements
or
high
standards
of
section
44
of
the
Rules.
Counsel
for
the
respondent
attempted
to
distinguish
the
present
case
from
the
decision
in
the
Discovery
Research
Systems
Inc.
case
in
that
in
the
present
case
counsel
for
the
respondent
had
a
reminder
system
while
in
the
former
case
no
system
of
any
kind
had
been
in
place.
Counsel
for
the
respondent
stressed
that
it
was
a
case
of
simple
error
and
that
there
was
no
prejudice.
The
respondent
also
asked
the
Court
in
the
course
of
the
oral
hearing
to
extend
the
time
for
filing
the
reply.
For
a
proper
understanding
of
my
analysis
of
the
submissions
of
the
parties
to
the
present
litigation,
I
find
it
convenient
to
reproduce
sections
44,
12
and
62
of
the
Tax
Court
of
Canada
Rules
(General
Procedure).
Section
44
of
the
Rules
reads
as
follows:
44.
(1)
A
reply
shall
be
filed
in
the
Registry
within
sixty
days
after
service
of
the
notice
of
appeal,
unless
the
appellant,
(a)
in
the
case
of
an
appeal
under
Part
IX
of
the
Excise
Tax
Act,
has
consented
under
section
18.3004
of
the
Act
to
the
filing
of
the
reply
after
the
sixty
days,
or
(b)
in
any
other
case,
has
consented
in
writing
to
an
extension
of
the
sixty
days
for
a
period
not
exceeding
an
additional
thirty
days.
(2)
A
reply
shall
be
served
(a)
within
5
days
after
the
sixty-day
period
prescribed
under
subsection
(1),
(b)
within
the
time
prescribed
in
an
extension
of
time
granted
by
the
Court
under
subsection
(3),
or
(c)
where
a
consent
has
been
given
under
section
184
of
the
Act
or
under
paragraph
(1)(b),
within
the
time
specified
by
the
consent
for
the
filing
of
the
reply.
(3)
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.
(4)
Subsection
12(3)
has
no
application
to
this
section.
In
the
aforementioned
section
44
of
the
Rules,
there
is
a
reference
to
section
12
of
these
Rules
which
provides
thus:
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.
Section
63
of
the
same
Rules
sets
out
the
types
of
relief
that
may
be
granted
by
the
Court
in
cases
where
the
respondent
has
failed
to
file
and
serve
a
reply
to
a
notice
of
appeal
within
the
time
frames
laid
down
in
section
44.
Section
63
reads
as
follows:
63.
(1)
When
a
reply
to
a
notice
of
appeal
has
not
been
filed
and
served
within
(a)
the
periods
prescribed
under
subsections
44(1)
and
(2),
(b)
the
extended
time
referred
to
in
paragraph
44(1)(a),
or
(c)
such
extended
time
as
may
be
granted
under
paragraph
44(1)(b)
of
subsection
44(3),
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.
In
my
view,
the
submissions
of
the
parties
to
this
motion
must
be
considered
in
light
of
the
principles
formulated
by
this
Court
in
its
decisions
in
the
Carew
and
Discovery
Research
Systems
cases
referred
to
earlier.
I
am
particularly
in
agreement
with
the
following
observations:
Judge
Kempo
in
the
Carew
case
said
this
at
page
2073
(D.T.C.
1294):
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
diminutive
the
specific
rule.
This
too
would
beget
trivialization
of
Rule
44.
Later
she
adds
this:
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.
Judge
Bonner
in
the
Discovery
Research
Systems
case,
expressed
himself
at
page
2395
(D.T.C.
1307)
in
these
terms:
If
extensions
of
the
time
for
filing
Replies
were
permitted
in
cases
of
delay
caused
by
simple
inadvertence
there
would
be
a
swift
return
to
the
"bad
old
days"
when,
under
the
rules
which
governed
proceedings
commenced
before
1991,
the
great
majority
of
Replies
were
served
and
filed
well
after
the
60
day
deadline.
That
practice
was
one
of
the
evils
the
present
Rules
were
intended
to
eradicate.
The
Rules
would
be
rendered
toothless
if
late
filing
were
permitted
in
cases
such
as
this.
Applying
these
principles
to
the
facts
of
the
present
situation,
I
am
of
the
view
that
the
present
case
is
not
a
proper
one
for
granting
an
extension
of
time
for
filing
the
reply.
It
seems
to
me
that
an
extension
of
time
for
filing
or
serving
the
reply
to
the
notice
of
appeal
should
not
be
granted
if
the
tardiness
is
ascribable
to
an
administrative
oversight
or
an
error
of
the
type
with
which
we
are
concerned
here.
On
the
other
hand,
such
remedy
would
seem
to
be
an
appropriate
exercise
of
the
Court's
discretion
if
the
delay
is
attributable
to
a
clearly
unforeseen
event
or
unusual
circumstances
over
which
the
respondent
had
little
or
no
control
and
the
latter
is
able
to
show
due
diligence
in
coping
with
the
situation.
I
am
further
of
the
view
that
it
would
be
unreasonable
to
grant
the
relief
referred
to
in
paragraph
63(2)(c)
of
the
Rules.
In
other
words,
I
would
not
be
prepared
to
allow
the
appeal
even
if
I
were
satisfied
that
the
facts
alleged
in
the
notice
of
appeal
would
entitle
the
appellant
herein
to
the
relief
sought.
This
would
clearly
be
a
disproportionate
measure
having
regard
to
all
the
circumstances
of
the
case.
After
all,
the
delay
is
minimal
and
no
prejudice
of
any
specific
nature
was
established
by
the
applicant.
In
my
view,
the
interest
that
is
to
be
safeguarded
here
is
that
time
limits
provided
by
the
Tax
Court
of
Canada
Rules
(General
Procedure)
be
respected
so
as
to
secure
an
expeditious
disposition
of
appeals
or
other
proceedings
to
which
the
Rules
are
applicable.
This
result
appears
to
me
to
be
consonant
with
subsection
4(1)
of
the
Rules
which
provides
that:
4.
(1)
These
rules
shall
be
liberally
construed
to
secure
the
just,
most
expeditious
and
least
expensive
determination
of
every
proceeding
on
its
merits.
I
am
also
mindful
of
the
provisions
of
subsection
44(4)
of
the
Rules.
In
conclusion,
I
am
of
the
view
that
it
would
be
an
appropriate
sanction
of
the
breach
by
the
respondent
of
the
provisions
of
section
44
of
the
Rules
in
the
present
situation
if
the
relief
set
out
in
paragraph
63(2)(b)
was
to
be
granted.
I
do
not
think
that
this
is
too
rigorous
a
disposition
of
the
matter
at
hand
since
it
should
not
be
too
great
a
burden
for
the
respondent
to
discharge
if,
of
course,
the
reassessments
in
issue
rest
on
a
solid
factual
basis.
There
will
therefore
be
a
direction
under
paragraph
63(2)(b)
of
the
Rules
that
the
hearing
of
the
appeals
proceed
on
the
basis
that
the
facts
alleged
in
the
notice
of
appeal
are
presumed
to
be
true.
I
will
not
relieve
the
applicant
of
the
requirement
to
pay
a
hearing
fee
under
the
Rules
since
a
hearing
will
be
required.
The
appellant
is
entitled
to
the
costs
of
the
motion
in
any
event
of
the
cause.
Order
accordingly.
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