Date: 19980904
Docket: 98-174-UI
BETWEEN:
PAULA MacKINNON,
Applicant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Order
Sarchuk, J.T.C.C.
[1]This Court has before it motions by Paula MacKinnon (the
Applicant) and the Minister of National Revenue (the
Minister).
[2]The Applicant is seeking, inter alia,
(a) an Order pursuant to sections 12 and 13 of the Tax
Court of Canada Act and/or Rule 27 of the Tax Court of
Canada Rules of Procedure Respecting the Employment Insurance
Act, (the Tax Court - UI Rules) extending the time
within which a Notice of Appeal may be filed, and
(b) for an Order that the Notice of Appeal dated October 24,
1997 filed on behalf of the Applicant and/or the Notice of Appeal
dated February 17, 1998, filed on behalf of the Applicant be
considered valid appeals pursuant to subsection 70(1.1) of the
Unemployment Insurance Act and/or subsection 103(1)
of the Employment Insurance Act.
[3]The Minister is seeking an Order:
(a) dismissing the Appellant’s appeal on the basis that
it was filed with the Tax Court of Canada beyond the 90-day
period specified in section 70 of the Unemployment Insurance
Act; and
(b) in the alternative, dismissing the Applicant’s
request for an extension of time to file an appeal on the basis
that it was filed with the Tax Court of Canada beyond the 90-day
period specified in section 5(1) of the Tax Court - UI
Rules; and
(c) in the further alternative, extending the time within
which the Reply to the Notice of Appeal may be filed.
[4]The motions were heard on the basis of affidavits submitted
by the Applicant, her solicitor, Theresa Marie Forgeron
(Forgeron), and Patrick LaRusic, an officer of the
Department of National Revenue.
[5]There is virtually no dispute as to the facts. The
Applicant had requested a determination on the insurability for
unemployment insurance purposes of her employment with Island Inn
Limited for the period September 25, 1994 to September 22, 1995,
as well as from October 21, 1995 to October 18, 1996.
Following an adverse initial ruling from Revenue Canada, the
Applicant appealed. The chief of appeals of Revenue Canada
confirmed the determination by letter dated October 7, 1997.
Details on how to initiate an appeal were provided to the
Applicant by way of an attached form entitled “How to
Appeal to the Tax Court of Canada".
[6]On October 23, 1997, the Applicant instructed her solicitor
to appeal the decision. A Notice of Appeal was drafted on October
24, 1997 and on October 29, 1997, Forgeron requested a
member of her staff to hand-deliver the document to the local
office of Human Resources Development Canada (HRDC). By letter to
HRDC dated January 22, 1998, Forgeron inquired regarding the
status of the appeal. She further states that on or about
February 11, 1998, she realized that she had mistakenly filed the
Notice of Appeal with the local office of HRDC and not with the
Tax Court of Canada. On February 17, 1998, Forgeron forwarded to
the Tax Court of Canada a further Notice of Appeal[1] together with a
covering letter “in order to rectify” what was
referred to by her as “an inadvertent error”.
Statutory Provisions
[7]The Unemployment Insurance Act provides:
70(1) The Commission or a person affected by a determination
by, or a decision on an appeal to, the Minister under section 61
may, within ninety days after the determination or decision is
communicated to him, or within such longer time as the Tax Court
of Canada on application made to it within those ninety days may
allow, appeal from the determination or decisions to that court
in the manner prescribed.
The Tax Court - UI Rules relating to instituting
appeals provide:
2 In these Rules
“Registry” means the principal office of the Court
at 200 Kent Street, 2nd floor, Ottawa, Ontario. K1A 0M1
(telephone: (613)992-0901, fax: (613) 957-9034), or any other
office of the Court at
MONTREAL TORONTO VANCOUVER
... ... ...
3 These rules shall be liberally construed to secure the just,
least expensive and most expeditious determination of every
appeal on its merits.
5(1) An appeal by an Appellant from a decision on an appeal to
the Minister shall be instituted within the time period set out
in subsection 103(1) of the Act which is 90 days after the
decision is communicated to the Appellant, or within such longer
time as the Court may allow on application made to it within
those 90 days.
5(5) An appeal shall be instituted by filing in, or mailing
to, a Registry the original of the written appeal referred to in
subsection (1).
26(1) Unless otherwise provided in these rules, service of any
document provided for in these rules shall be effected by
personal service or by mail or by fax addressed
(a) in the case of the Court or the Registrar, to a
Registry,
(b) in the case of the Minister, to the Deputy Minister
of National Revenue, Ottawa, Ontario, K1A 0L5
...
27(1) Failure to comply with these rules shall not render any
proceedings void unless the Court so directs, but such
proceedings may be set aside either in whole or in part as
irregular and may be amended or otherwise dealt with in such
manner and upon such terms as, in the opinion of the Court, the
circumstances of the case require.
27(3) The Court may, where and as necessary in the interests
of justice, dispense with compliance with any rule at any
time.
The Tax Court of Canada Act provides:
18.15(1) An appeal referred to in section 18 shall be made in
writing and shall set out, in general terms, the reasons for the
appeal and the relevant facts, but no special form of pleadings
is required unless the Act out of which the appeal arises
expressly provides otherwise.
18.15(3) An appeal referred to in section 18 shall be
instituted by filing in, or mailing to, an office of the Registry
of the Court the original of the written appeal referred to in
subsection (1).
18.29(1) The provisions of sections 18.14 and 18.15, paragraph
18.18(1)(a), section 18.19, subsection 18.22(3) and
sections 18.23 and 18.24 apply, with such modifications as
the circumstances require, in respect of appeals arising
under
...
(b) Parts IV and VII of the Employment Insurance
Act;
...
Applicant’s Position
[8]The Applicant does not dispute that the relevant
legislation, subsection 70(1) of the UI Act, requires
an appeal to the Tax Court of Canada to be filed in the manner
prescribed within 90 days after the determination is communicated
to the person affected thereby and that the combined effect of
Rule 5(5) and Rule 26(1)(a) is that the prescribed manner
for instituting an appeal is by filing in, or mailing to, a
Registry the form of Notice of Appeal set out in schedule V. The
Applicant concedes that this was not done until after the 90-day
limitation had passed; however, she contends that a Notice of
Appeal had previously been filed with the relevant government
department, HRDC, well within the 90-day limitation period.
[9]It is the Applicant’s position that under Rule 27(3),
this Court has the jurisdiction to waive compliance with any of
the other Rules, in this case Rule 5(5), where it is
in the interests of justice to do so. Counsel specifically relies
on two decisions of this Court in which the Rule requiring the
payment of a filing fee to institute an appeal under the Tax
Court of Canada Rules (General Procedure) was dispensed with
pursuant to Rule 9 of those Rules, which Counsel argued is the
equivalent of Rule 27(3) of the Tax Court - UI Rules.[2]
[10]Counsel for the Applicant further argues that she has
clearly demonstrated her continuing intention to appeal by
appealing the initial ruling of March 10, 1997 to the Chief of
Appeals and by instructing her solicitor within two weeks of
receiving the decision of the Chief of Appeals to institute a
further appeal. Through inadvertence, her appeal was filed in the
wrong place and no one there informed the Applicant or her
solicitor that was the case. Counsel contends that if this
application is unsuccessful, it is likely that the Applicant will
be denied the ability to present her case to this Court and this
would not serve the interests of justice.
Respondent’s Position
[11]It is the Respondent’s position that the prescribed
manner of filing a Notice of Appeal is not just a question of
compliance with the Rules but is also a question of compliance
with the provisions of the Tax Court of Canada Act. In
particular, Counsel referred to subsection 18.15(3) and argued
that while the Court is given the authority by the Rules to waive
a requirement thereof, it has no authority to waive a statutory
requirement. Section 70 of the UI Act provides that
“the appeal must be filed in the manner prescribed”
and subsection 18.15(3) of the Tax Court of Canada Act
does just that.
Conclusion
[12]The Applicant asks this Court to use its authority under
Rule 27(3) to waive compliance with Rule 5(5) and to accept the
filing of a Notice of Appeal with HRDC as an effective
institution of her appeal. However, Rule 5(5) does not stand
alone. Rather, it mirrors (duplicates, if you will) the
requirements of the Tax Court of Canada Act, more
specifically, subsection 18.15(3) which provides that appeals
“shall be instituted by filing in, or mailing to, an office
of the Registry of the Court the original of the written appeal
...”. Furthermore, subsection 18.29(1) of that Act
provides, inter alia, that section 18.15 applies to
appeals to this Court under the Unemployment Insurance
Act.
[13]Counsel for the Applicant argued that subsection 18.15(3)
does not apply in the present situation. He referred to
subsection 18.29(2) of the Tax Court of Canada Act which
reads:
18.29(2) Where an appeal arises out of one of the Acts
referred to in subsection (1) and that Act contains a
provision that is inconsistent with one of the provisions of this
Act referred to in that subsection, the provision of the
Act out of which the appeal arises prevails to the extent
of the inconsistency.
and contended that:
... what is crucial here is section 70(1) and 103(1) of the
Unemployment Insurance and Employment Insurance Acts,
respectively, and therefore the statutory requirement that my
learned friend is suggesting really does not apply in this
situation. And therefore that just brings us back to the
arguments I made initially, Your Honour, that it really comes
back to those sections of the U.I. Act and how those
interact with the Rules prescribed for these sorts of appeals.
...
With respect, I am unable to find any merit in this
submission.
[14]I agree with the Respondent’s position that the
relief sought by the Applicant cannot be granted by this Court.
Although Rule 27(3) authorizes this Court, in the interests of
justice, to dispense with compliance of any Rule at any time,
compliance with subsection 18.15(3) of the Tax Court of
Canada cannot be waived because it is a statutory provision.
In Pervais v. The Queen,[3]the Court had before it an
application for judicial review of the decision of the Minister
with respect to insurability of employment under subsection 70(1)
of the Unemployment Insurance Act. Strayer J, speaking for
the Court, observed:
While Rule 27 of the Tax Court Rules for Unemployment
Insurance appeals, made under the authority of the Tax
Court Act, permits that Court to dispense with compliance
with any Rule, this clearly does not authorize the Court to alter
the statutory conditions for appeal in subsection 70(1) of the
Unemployment Insurance Act.
In the absence of a clear statutory authority, this Court does
not have the jurisdiction to waive the specific provisions of
subsection 18.15(3) of the Tax Court of Canada Act.
[15]The decisions of Judge Bell in both Moss and
Reid relied upon by the Applicant involved a taxpayer
applying for an Order in forma pauperis dispensing with
the requirement to pay Court fees relating to the filing of the
appeals. The authority creating the obligation to pay the Court
fees is found within the Tax Court of Canada Rules and is
not a statutory requirement. Thus, as was observed by Bell J. in
holding that it was in the interests of justice to grant the
applications, the Court was simply acting within its jurisdiction
to dispense with compliance with the Rule requiring the payment
of a filing fee.
[16]For these reasons, the Applicant’s motion is denied
and the Respondent’s motion is granted and the
Applicant’s purported appeal is quashed.
Signed at Ottawa, Canada, this 4th day of September, 1998.
"A.A. Sarchuk"
J.T.C.C.
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