Citation: 2008 TCC 514
Date: 20081113
Docket: 2008-1566(IT)APP
BETWEEN:
SANDRA RITTER,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Bédard J.
[1]
This is an application
under subsection 167(5) of the Income Tax Act (the "Act")
for an order extending the time in which the Applicant can institute an appeal
from a decision of the Minister of National Revenue (the "Minister")
concerning the 2000, 2001, 2002 and 2003 taxation years. The Court must
determine whether this application for an extension of time (the "application")
is well-founded.
Background
[2]
On October 18, 2005, the
Minister sent the Applicant notices of reassessment concerning the 2000, 2001,
2002 and 2003 taxation years. The Applicant personally prepared notices of
objection with respect to the reassessments and sent them herself to the
Minister on or about January 10, 2006. By registered letter mailed on
March 29, 2007, the Minister notified the Applicant that he was
confirming the reassessments dated October 18, 2005. The Applicant
did not lodge with this Court within the time prescribed by section 169 of
the Act — that is to say, by June 27, 2007
— an appeal from the reassessments dated
October 18, 2005, which were confirmed on March 29, 2007. On
May 27, 2008, the Applicant filed an application in this Court for an
extension of time for appealing the reassessments.
[3]
The evidence adduced by
the Applicant in support of the application consisted of her testimony,
documents (Exhibits R‑2, R‑3, R‑4 and R‑5) issued
by the revenue collections division of the Canada Customs and Revenue Agency (the
"Agency") and a photocopy of minutes book entries concerning the
Applicant's divorce proceedings against her husband Stephen St-Pierre (Exhibit R‑1).
[4]
Is the Applicant in compliance
with subsection 167(5) of the Act, and is she entitled to an extension of
the time in which to file her notice of appeal? Subsection 167(5) of the
Act reads as follows:
167(5) When order to be made – No order shall be made under this
section unless
(a) the application is made within one year after the
expiration of the time limited by section 169 for appealing; and
(b) the taxpayer demonstrates that
(i) within the time otherwise limited by section 169 for appealing
the taxpayer
(A) was unable to act or to instruct another to act in the
taxpayer’s name, or
(B) had a bona fide intention to appeal,
(ii) given the reasons set out in the application and the
circumstances of the case, it would be just and equitable to grant the
application,
(iii) the application was made as soon as circumstances permitted,
and
(iv) there are reasonable grounds for the appeal.
[5]
The time for
instituting an appeal under section 169 of the Act expired on
June 27, 2007. The Applicant filed the application on May 27, 2008.
Thus, the application was made within one year after the expiration of the time
limited by section 169 for appealing. Consequently, the Respondent has
complied with paragraph 167(5)(a) of the Act.
[6]
Before allowing the
application, the Court must be satisfied that within the time allowed for
appealing (here, that time expired on June 27, 2007) the Applicant
was unable to act or to instruct another to act in her name, or had a bona fide
intention to appeal. The Applicant's evidence in this regard consisted
solely of her own testimony, which I found not only to be vague and
imprecise, but also to lack credibility. Her testimony on this point can
be summarized as follows: After receiving notices of confirmation that she did
not understand due to her lack of knowledge in tax matters, she panicked and mandated
her spouse, Stephen St‑Pierre, to deal with the notices, since she
did not then have the wherewithal to retain a lawyer for that purpose. The
Applicant added that she realized much later — that is, after June 27, 2007 — that her husband had done nothing with respect to
these reassessments. I note immediately that I found the Respondent's testimony
that she was totally ignorant in tax matters and was therefore unable to
understand the nature of the notices of confirmation, and thus to understand the
accompanying instructions regarding the procedure for appealing from the
reassessments, to lack credibility because she herself had written and served on
the minister the notices of objection regarding those reassessments. It is
therefore difficult to accord any weight to the Applicant's testimony, which is
not supported by the testimony of independent and credible witnesses or by
serious and relevant documentary evidence. In view of the little weight that I
have given to the Applicant's testimony, it is difficult for me to believe that
she instructed her husband to institute in her name an appeal from the
reassessments. The Applicant could have called Mr. St‑Pierre to support
her own allegations in this regard. She did not do so. In light of this, I
conclude that such testimony would have been unfavourable to her. I also note
that the Applicant's testimony provided no particulars at all with respect to
the exact nature of the mandate with which she supposedly entrusted Mr. St-Pierre.
Indeed, at no point in her testimony did she specifically state that she had instructed
Mr. St‑Pierre – if indeed she ever actually had done so – to institute
in her name an appeal from the reassessments. The Applicant not only had to
satisfy me that she had given Mr. St‑Pierre a mandate, she also had
to satisfy me that she had given him a mandate to appeal, and not a mandate to obtain
an acceptable settlement regarding the reassessments, or to obtain acceptable
terms for payment of the assessed amounts. I therefore find that the Applicant
has not met the conditions set out in of subparagraph 167(5)(b)(i) of
the Act.
[7]
The Applicant also had
to satisfy me that the application was made as soon as circumstances permitted.
I would note once again that the Applicant's evidence in this regard consisted
solely of her own testimony, which can be summarized as follows:
(a)
Faced with Mr.
St-Pierre's inaction, she decided to consult a lawyer. Thus, on September
18, 2007, she met with Pierre-Paul Bourdages, whom she says she instructed to
"contact them [i.e. the Agency] and take care of the whole thing."
I would note immediately that the Applicant's testimony was completely silent
as to the precise nature of the mandate she gave Mr. Bourdages at that
time, as to the nature of the documents that she gave him at the time, and as
to the nature of the advice that she got from him at the meeting and subsequently.
(b)
On April 30, 2008, she
received from the Agency a requirement to pay the assessed amounts. Panic-stricken,
she asked Mr. Bourdages "to go to Court".
(c)
To explain why the
application for an extension of time was not filed with the Court before
May 27, 2008 (almost one year after the time for appealing expired), the
Applicant said that her lawyer "was waiting for the file to be sent before
doing something." It should be noted that the Applicant's testimony was completely
silent with respect to:
(i)
the identity of the person
who requested documents,
(ii)
the exact nature of the
documents requested,
(iii)
the identity of the Agency
representative to whom the request was made, and
(iv)
the date on which the
requested documents were received.
[8]
I do not know how awaiting
documents requested from the Agency (assuming that such a request was made,
which I doubt) can constitute a circumstance that prevented the Applicant from
filing the application. In fact, these documents, assuming that they were even
requested and received, were definitely not used for the purpose of preparing the
Notice of Appeal that accompanied the application for an extension of time.
Indeed, the Notice of Appeal contains exactly the same wording as the
notice of objection that the Applicant personally drafted and served upon the
Minister. Thus, I find that the Applicant has not met the condition
set out in subparagraph 167(5)(b)(iii) of the Act.
[9]
For the foregoing
reasons, the application is dismissed.
Signed at Ottawa, Canada, this 13th day of November 2008.
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