Citation: 2009TCC454
Date: 20090914
Dockets: 2009-1327(EI)APP
2009-1328(CPP)APP
BETWEEN:
IRENE E. WENNGATZ,
Applicant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR ORDER
Webb J.
[1] The Applicant
made an application to extend the time within which she may appeal to this
Court under the Employment Insurance Act (the “EI Act”) and
under the Canada Pension Plan (the “CPP”). The Respondent has
brought a Motion to have these applications dismissed.
[2] The Applicant
made a ruling request in early 2008 in relation to whether she was engaged in
insurable and pensionable employment for the purposes of the EI Act
and the CPP, respectively, in 2006. The Canada Revenue Agency
informed the Applicant by letter dated April 2, 2008 that, since her request
was not made within the period of time as set out in the EI Act and the CPP,
no ruling would be issued. The Applicant submitted an application to extend the
time to appeal this Court on April 27, 2009.
[3] Subsections 26.1
(1) and (2) of the CPP provide as follows:
26.1 (1) The
Minister of Social Development, an employer, an employee or a person claiming
to be an employer or an employee may request an officer of the Canada Revenue
Agency authorized by the Minister of National Revenue to make a ruling on any
of the following questions:
(a) whether an
employment is pensionable;
(b) how long
an employment lasts, including the dates on which it begins and ends;
(c) what is
the amount of any earnings from pensionable employment;
(d) whether a
contribution is payable;
(e) what is
the amount of a contribution that is payable; and
(f) who is the
employer of a person in pensionable employment.
(2) The
Minister of Social Development may request a ruling at any time, but a
request by any other person must be made before June 30 of the year after the
year in respect of which the question relates.
(emphasis
added)
[4] The Appellant’s request for a ruling was in respect of
2006 and it was not submitted until January 25, 2008, which was more than six
months after the deadline imposed by subsection 26.1(2) for submitting a
request for a ruling.
[5] Subsections 90(1)
and (2) of the EI Act provide as follows:
90. (1) An
employer, an employee, a person claiming to be an employer or an employee or
the Commission may request an officer of the Canada Revenue Agency authorized
by the Minister to make a ruling on any of the following questions:
(a) whether an
employment is insurable;
(b) how long
an insurable employment lasts, including the dates on which it begins and ends;
(c) what is
the amount of any insurable earnings;
(d) how many
hours an insured person has had in insurable employment;
(e) whether a
premium is payable;
(f) what is
the amount of a premium payable;
(g) who is the
employer of an insured person;
(h) whether
employers are associated employers; and
(i) what
amount shall be refunded under subsections 96(4) to (10).
(2) The
Commission may request a ruling at any time, but a request by any other
person must be made before the June 30 following the year to which the question
relates.
(emphasis added)
[6] The time limitation for requesting a ruling under the EI
Act is the same as the time limitation for requesting a ruling under the CPP
– before June 30 following the year to which the question relates. Since the
question was related to 2006, the request for a ruling had to be made before
June 30, 2007. The Applicant did not make her request for a ruling until
January 25, 2008.
[7] Appeals to this Court are provided for in subsection 28(1) of the CPP, which provides as
follows:
28. (1) A
person affected by a decision on an appeal to the Minister under section 27 or
27.1, or the person's representative, may, within 90 days after the decision is
communicated to the person, or within any longer time that the Tax Court of
Canada on application made to it within 90 days after the expiration of those
90 days allows, appeal from the decision to that Court in accordance with the Tax
Court of Canada Act and the applicable rules of court made thereunder.
[8] Subsection
103(1) of the EI Act provides as follows:
103. (1) The
Commission or a person affected by a decision on an appeal to the Minister
under section 91 or 92 may appeal from the decision to the Tax Court of Canada
in accordance with the Tax Court of Canada Act and the applicable rules
of court made thereunder within 90 days after the decision is communicated to
the Commission or the person, or within such longer time as the Court allows on
application made to it within 90 days after the expiration of those 90 days.
[9] Both subsections
provide that an appeal to this Court must be filed within 90 days after the
decision referred to in these subsections is communicated to the Applicant or
an application to extend the time within which an appeal may be commenced must
be made within 90 days after the expiration the first 90 day period. The decision
referred to in these subsections is the decision of the Minister following an
appeal to the Minister under section 27 of the CPP (in relation to a
ruling) and section 91 of the EI Act (in relation to a ruling). The Applicant
did not file an appeal to the Minister under section 27 of the CPP nor
did the Applicant file an appeal to the Minister under section 91 of the EI
Act. As a result there is no decision of the Minister that was rendered in
this case.
[10] This Court was
formed by an Act of Parliament, the Tax Court of Canada Act. Section 12
of this Act provides that:
12. (1) The Court has exclusive original jurisdiction
to hear and determine references and appeals to the Court on matters arising
under the Air Travellers Security Charge Act, the Canada
Pension Plan, the Cultural Property Export and Import Act, Part V.1
of the Customs Act, the Employment Insurance Act, the Excise
Act, 2001, Part IX of the Excise Tax Act, the Income Tax
Act, the Old Age Security Act, the Petroleum and Gas Revenue Tax
Act and the Softwood Lumber Products Export Charge Act, 2006 when
references or appeals to the Court are provided for in those Acts.
(emphasis
added)
[11] It seems to me
that the jurisdiction of this Court to hear appeals from decisions rendered
under the EI Act or the CPP is limited to situations in which an
appeal is provided for in these statutes. These statutes only provide for an
appeal to this Court if the person has:
(a)
first obtained a ruling under
section 90 of the EI Act or section 26.1 of the CPP (following
the submission of a request for a ruling within the time period specified for
making such a request in these sections),
(b)
then appealed that ruling to the
Minister under sections 91 and 93 of the EI Act or sections 27 and 27.2
of the CPP (within the time period for appealing to the Minister as set
out in these sections) and obtained a decision of the Minister in relation to such
appeal; and
(c)
then filed an appeal to this Court
under section 103 of the EI Act or section 28 of the CPP within
the 90 day period following the date that the decision of the Minister is
communicated to the person or an application to extend the time to appeal is
made within the 90 day period immediately following this appeal period.
[12] In Power v. Minister of National Revenue,
2005 TCC 200, Justice Bowie determined that a letter stating that the person’s
appeal to the Minister would not be accepted because it was not made within the
time prescribed for appealing to the Minister, is not a decision that can be
appealed to this Court. He stated as follows:
4 …
The letter that the Appellants in the present case would have me consider to be
a "decision" giving rise to a right of appeal, in contrast,
specifically declines to consider the issue or to make any determination of the
question in dispute. It simply says that no appeal to the Minister is available
because of the lapse of time.
5 The
Federal Court of Appeal said in Moumdjian v. Canada (Security
Intelligence Review Committee):6
... the term "decision or order" has no fixed or precise
meaning but, rather, depends upon the statutory context in which the advisory
decision is made, having regard to the effect which such decision has on the
rights and liberties of those seeking judicial review.
That decision,
like the decision of the Supreme Court of Canada in Saulnier v. Québec
(Police Commission),7 certainly had the effect of broadening the
categories of decisions that would be subject to judicial review. What is in
issue here, however, is the scope of a statutory right of appeal, and it must
be assessed in light of the language of the statute. Subsection 103(1) of the
Act gives the right of appeal to:
... a person affected by a decision on an appeal to the Minister under
section 91 or 92 ...
* * *
... une personne que concerne une décision rendue au
titre de l'article 91 ou 92 ...
I am unable to
read this expression in either French or English in such a way as to mean
anything other than a decision made by the Minister, or the Minister's
delegate, in the exercise of the jurisdiction to review the decisions of
rulings officers - in other words, the jurisdiction to consider and decide
whether the ruling given was correct. If the Minister's departmental officers
decline to put the matter forward to the Minister, or a delegate, because they
are of the view that the appeal was filed late, neither they nor the Minister
has made a decision. The remedy that lies if the appeal was in fact filed in
time is a mandatory order to compel the Minister to exercise his jurisdiction.
This, of course, is a remedy that this Court cannot give; as a statutory Court
it has only the powers that are found in the Tax Court of Canada Act,8
or in some other statute, and the power to make an order in the nature of
mandamus is not one of them. [The footnote references were inserted by Justice
Bowie and can be found at the end of his reported decision.]
[13] Associate Chief Justice Rossiter followed the decision
of Justice Bowie in 741290 Ontario Inc. v. The Queen 2008 TCC 55,
2008 DTC 2713.
[14] In this case, the Applicant does not have a ruling.
None of the questions on which a ruling is to be made under subsection 26.1(1)
of the CPP or subsection 90(1) of the EI Act are addressed in the letter from the Canada Revenue
Agency dated April 2, 2008. Just as a letter stating that the appeal to the
Minister was not filed in time is not a decision, a letter from the Canada
Revenue Agency stating that the request for a ruling was not made within the
time prescribed for such a request, is not a ruling.
[15] In this case it is clear that not only is there no
ruling but also that there is no decision of the Minister. The perquisite to
appealing to this Court is that the Applicant must have obtained a decision of
the Minister (which is only obtained following the appeal of a ruling). As a
result, the Applicant cannot appeal to this Court.
[16] The Applicant had also requested an Order compelling
the Canada Revenue Agency to process the ruling request. As noted above, the
jurisdiction of this Court is limited to hearing and determining appeals under
the EI Act and the CPP when appeals are provided for in those
statutes. There is no power to order the Canada Revenue Agency to process the
ruling request. In any event, the ruling request was made more than six months
after the time period for making such a request had expired.
[17] As a result the Respondent’s Motion is granted and the applications by the Applicant to extend the time
within which to file an appeal to this Court under the CPP and the EI
Act are dismissed.
Signed at Ottawa, Canada, this 14th day of September, 2009.
“Wyman W. Webb”
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