Docket: 2010-2433(IT)APP
BETWEEN:
PATRICK NICHOLLS,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Motions
heard on common evidence with the motions of Patrick Nicholls (2009-2034(IT)I)
and Patrick Nicholls (2010-1587(IT)G) on March 31, 2011, at Toronto, Ontario
Before: The Honourable
Justice L.M. Little
Appearances:
|
For the Applicant:
|
The
Applicant himself
|
|
Counsel for the Respondent:
|
Ricky Tang
|
____________________________________________________________________
ORDER
Upon Motion, dated February 28, 2011, made by the
Applicant for:
“…
reconsideration of the reasons for judgment and judgment vacating taxation
years 1991 and 1992 as effectively extinguished or nullities and direction on
assessment correction.”;
And upon Supplemental Motion, dated March 18,
2011, made by the Applicant for:
“…
repaying an invalid Requirement to Pay (the RTP) payment and set off refunds
for tax years 2008 through 2011 as a result of the period in controversy, tax
years prior to 1996 and for corrections to apparent administrative error during
that period and for vacating taxation year 1990 repeat late file penalty, 1991
installment interest and to vary installment interest for 1993 and 1994; and
for to further, reopen grandfathered fairness application and compel the Canada
Revenue Agency (the Agency) to reply to a currently unanswered 1998 to 1995
capital loss carry back request.”
And upon reading the pleadings and hearing
submissions by the parties;
IT IS ORDERED THAT:
1. The Applicant’s Motions are
dismissed;
2. Costs
shall be payable forthwith to the Respondent by the Applicant in the amount of
$1,000;
in accordance with the
attached Reasons for Order.
Signed at Vancouver, British Columbia, this 19th day of May 2011.
“L.M. Little”
Citation: 2011 TCC 272
Date: 20110519
Docket: 2010-2433(IT)APP
BETWEEN:
PATRICK NICHOLLS,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Little J.
A. FACTS
[1]
The Applicant filed a
Notice of Appeal for his 1990 to 1995 taxation years on June 21, 2010.
[2]
Because the date of the
Notice of Reassessment was November 10, 2005, the Registry Officer of the Tax
Court determined that the document that was filed with the Court should not be
recognized as a valid Notice of Appeal but should be recognized as an Application
to extend the time to file a Notice of Appeal.
[3]
The Applicant maintains
that the treatment that he received from the Tax Court on the filing of
his document was incorrect.
[4]
The Applicant has
brought a Motion and a supplemental Motion to reconsider the Judgment of
Justice V.A. Miller where she dismissed his application to extend time to file
a Notice of Appeal. (See 2011 TCC 39)
[5]
The question is, did Justice V.A.
Miller overlook or omit a matter in her decision or are her Reasons in
discordance with her Order such that section 168 of the Tax Court of Canada Rules
(General Procedure) (the “Rules”) allows this Court to reconsider
it?
[6]
The Applicant filed a Notice
of Motion with the Court, dated February 28, 2011, and a Supplemental
Motion, dated March 18, 2011, in which he framed the issues as follows:
1.
Whether the Minister
was out of time to reply or respond?
2.
Whether the tax years
1991 and 1992 are statute barred from collection?
3.
Whether the reassessment refunds
are computed for 1993 and 1994 tax years?
4.
Whether one or any of 2009 through
2011 set off should be repaid?
5.
Whether the invalid Requirement to
Pay should be repaid with interest?
6.
Whether the 1990 late filing penalty
is correct or should be vacated?
7.
Whether installment interest is
correct or should be vacated?
8.
Whether the grandfathered fairness
application should be reopened?
9.
Whether the 1996 carry back should
be adjusted for correctness?
[7]
While the Applicant has come up
with nine separate issues to describe his Motions, all nine of these issues
relate to the substantial tax debt that the Applicant accumulated during the 1990
through 1995 taxation years. The Applicant’s position could be summarized by
stating that, in his view, the Minister of National Revenue (the “Minister”) is
statute barred from collecting the Applicant’s tax debts from 1990 through 1995
and the Minister cannot continue to collect the tax debts while the Applicant’s
appeal is in the Tax Court of Canada. (Note: This paragraph is added for
background information and the real issue is whether section 168 of the Rules
is applicable.)
B. ANALYSIS AND DECISION
[8]
Did the Applicant bring his Motion
to reconsider the Judgment of Justice V.A. Miller within the ten day
period after receiving knowledge of the Order?
[9]
The Applicant was required to
bring his Motion within ten days of knowledge of Justice V.A. Miller’s Order.
Justice V.A. Miller signed her Order on January 21, 2011, however,
the Order was sent to the Applicant on January 24, 2011. On February
1, 2011, the Applicant requested a set down date for his Motion by phone and on
February 3, 2011 he received confirmation that his Motion was made returnable
on March 31, 2011. In accordance with subsection 27(5) of the Interpretation
Act RSC 1985, c. I-21, the ten day period after January 24, 2011 ended
on February 3, 2011. I have concluded that the Applicant brought his
Motion in time.
[10]
Did Justice V.A. Miller overlook
or omit a matter or are her Reasons in discordance with her Order such that
section 168 of the Rules allows this Court to reconsider it?
[11]
The Applicant did not indicate
under which rule he brings his Motion to reconsider. However, section 168 of
the Rules appears to be the only possibility. Section 168 reads as
follows:
Reconsideration
of a Judgment on an Appeal
168. Where
the Court has pronounced a judgment disposing of an appeal any party may within
ten days after that party has knowledge of the judgment, move the Court to
reconsider the terms of the judgment on the grounds only,
(a)
that the judgment does not accord with the reasons for judgment, if any, or
(b)
that some matter that should have been dealt with in the judgment has been
overlooked or accidentally omitted.
[12]
The purpose of this rule is to get
around the fact that the Court is now functus officio. The rule allows
the Court to correct small errors without an appeal to a higher Court when the
conditions of section 168 are met.
[13]
The Order of Justice V.A. Miller
dated January 21, 2011 reads as follows:
Upon reading the application for an Order extending the time within
which to file a Notice of Appeal to the reassessments made under the Income
Tax Act for the 1992, 1993 and 1994 years and the assessments made under
the Income Tax Act for the 1990, 1991 and 1995 taxation years;
And upon hearing the Applicant and counsel for the Respondent;
The application is dismissed.
[14]
As Justice V.A. Miller’s Reasons
demonstrate, she rejected the Applicant’s contention that he never received the
Notices of Assessment and dismissed his appeals on the grounds that he failed
to file Notices of Objection during the period of one year and ninety days from
the mailing of the assessments. The one year and ninety day limitation period
can be arrived at by examining subsections 167(1), 167(5), 166.1(7) and 166.2
of the Income Tax Act (the “Act”). I believe that Justice V.A.
Miller is correct in concluding that since the Applicant did nothing within one
year and ninety days upon receiving his Notices of Assessment, his right to appeal
has expired.
[15]
Instead, the Applicant brings this
“Reconsider Motion” on the nine issues enumerated above. None of the items
address Justice V.A. Miller’s reasoning that he is statute barred. The Applicant
in this case seeks to “re-litigate” the same issues as his argument
deals with the substantive issues of the years in question. In my opinion, the
Appellant has failed to demonstrate that the Reasons of Justice V.A. Miller
do not accord with her Order and he has not shown that any matter was
overlooked or omitted by her. I have therefore concluded that his Motion should
be dismissed.
[16]
I have also concluded that his Notice
of Appeal was correctly converted by the Registry Officer to an Application to
extend the time limit within which to file a Notice of Objection. With respect
to that Application, Justice V.A. Miller dismissed it and now the Applicant is
statute barred for his 1990 through 1995 taxation years.
Costs
[17]
On March 31, 2011, I
heard these Motions and two other Motions filed by the Applicant. In addition,
the Applicant has filed other Motions before the Tax Court, the Federal
Court, the Federal Court of Appeal and other Courts in Ontario.
The applications made by the Applicant are very similar to the points raised
before me by the Applicant.
[18]
In my opinion, the
Applicant is wasting the time of the Court and wasting the time of the
Respondent in bringing this type of Motion. I award costs of $1,000.00 payable
by the Applicant to the Respondent. The costs are to be payable forthwith.
Signed at Vancouver, British Columbia, this 19th day of May 2011.
“L.M. Little”
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