Citation: 2006TCC364
Date: 20060707
Docket: 2004-4049(EI)
BETWEEN:
JEAN-EUDES SAVOIE,
Applicant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR ORDER
Deputy Judge Savoie
[1] These are the reasons
for the Order disposing of Jean‑Eudes Savoie's motion to set aside the
judgment rendered by this Court on January 10, 2006.
[2] The motion was heard at Bathurst, New Brunswick,
on May 11, 2006.
[3] The Minister of
National Revenue ("the Minister") considered the file in question and
determined that the Appellant's work was not under a contract of service and
therefore did not constitute insurable employment.
[4] On October 5, 2004,
the Appellant sent a letter to the Court along with his Notice of Appeal. The
problem is that his address as stated in the letter is Post Office Box
2146, whereas his address as stated in the Notice of Appeal is Post Office
Box 2148.
[5] The Court set the matter
down for hearing, and sent the notice of hearing to the Appellant at the
address provided in his Notice of Appeal. The hearing was scheduled for
December 12, 2005.
[6] The Appellant was
not in Court on the scheduled hearing date, and the Court dismissed his appeal due
to his absence. The judgment of the Court was rendered on
January 10, 2006.
[7] The judgment was
sent to the Appellant at Post Office Box 2148 by registered mail. The
Appellant, who, by virtue of his motion, is now an Applicant, received it on
January 11, 2006.
[8] On April 5, 2006, Jean-Eudes
Savoie sent the Court a motion to set aside the judgment on the ground that he
never received the notice of hearing because it was sent to Post Office Box
2148 instead of Post Office Box 2146.
[9] Stéphanie Côté, a
lawyer with the Tax Litigation Directorate, sent her legal opinion concerning
the Applicant's motion in a letter to Lucie Pilon, of this Court, dated
April 11, 2006. A copy of the letter was sent to the Applicant. I shall
reproduce Ms. Côté's letter below:
[TRANSLATION]
Quebec Regional Office
Guy Favreau Complex
200 René-Lévesque Boulevard West
East Tower, 9th Floor
Montréal, Quebec H2Z 1X4
Telephone: 514
496-3913
Facsimile: 514
283-3103 and 283-8427
Assistant: 514 496-3933
Montréal, April 11, 2006
BY FACSIMILE
Ms. Lucie Pilon
Tax Court of Canada
200 Kent Street
Ottawa, Ontario K1A 0M1
RE: Jean-Eudes
Savoie v. Minister of National Revenue
T.C.C. Docket:
2004-4049(EI)
Dear Madam,
This is in
reply to the Appellant's letter dated April 5, 2006, which, quite clearly,
requests that the judgment rendered by this Court on January 10, 2006,
be set aside.
We contacted the Registry
of the Court for information about the contents of this appeal file. We were
told that in his Notice of Appeal, the Appellant stated that his address was
Post Office Box 2148 in Lamèque, New Brunswick. That is why subsequent
correspondence was sent to that address.
In support of his motion,
the Applicant asserts that he never received the notice of hearing because it
was sent to P.O. Box 2148 instead of his actual address, P.O. Box 2146. Along with his
application, he encloses a copy of three letters from the Canada Revenue Agency
and the Department of Justice, even though they were sent to P.O. Box 2148.
The least recent of
these letters was sent by registered mail, along with our Reply to the
Notice of Appeal, on November 30, 2004. The other letters were sent
by Mr. Paraherakis (a lawyer with our Directorate at the time) and by the
undersigned on January 11 and February 18, 2005. True copies of these
letters were not sent to the Court, and none was returned to us by Canada Post.
Furthermore, Mr. Savoie must have received all three of them even though they
were addressed to Box 2148,
for otherwise, he could not have provided copies with his motion.
As for the notice of
hearing, the Registry officer told us that it was sent a first time by
registered mail to the address given in the Notice of Appeal, but that the mail
was returned (it is not known whether this is because it was incorrectly
addressed or because it was unclaimed). Consequently, the Registry tried to
send the notice of hearing again by regular mail. This second correspondence
was not returned by Canada Post.
The judgment of the
Court was also sent by registered mail to Box 2148. As stated in his
motion, the Applicant received it on January 11, 2006.
The Applicant's claim
that he did not receive his notice of hearing is not credible. He received all
the other documents that were sent to him at P.O. Box 2148, despite
the possibility that this P.O. Box was incorrect. Why would he not have
received the notice of hearing, especially considering the fact that the second
notice sent by the Registry was never returned by Canada Post? There is every
reason to believe that he did, indeed, receive this notice of hearing.
Subsection 172(2) of the
Tax Court of Canada Rules (General Procedure) states that in order to
have a judgment set aside, the Applicant must show fraud or facts arising or
discovered after it was made. There is no issue of fraud in this case. It is
up to the Applicant to show facts arising or discovered after the judgment.
However, by November 30,
2004, when he received our Reply to the Notice of Appeal, the Appellant must
have been aware that the mail was being sent to P.O. Box 2148, not P.O. Box 2146. Nonetheless, he
neglected to notify the Court, the Canada Revenue Agency, and counsel for the
Minister.
Another factor has
attracted our attention. Nearly three months elapsed between the time that the
Applicant was given notice of the judgment (January 11) and the time that he
brought his motion to set the judgment aside (April 5). Mr. Savoie is
an educated person (he was a teacher for more than 30 years) and was certainly
able to understand the nature of the document. Why did he not act sooner? The Applicant's
motion provides no explanation. All of this suggests that Mr. Savoie received
his notice of hearing (the second notice sent by regular mail), decided not to
appear in Court, and received a judgment consistent with the consequences of
his inaction.
We tried to obtain an
explanation for this delay from the Department of Human Resources and Social
Development (HRSDC). We were informed that, on or about
March 17, 2006, HRSDC resumed measures to recover the overpayment
received by the Applicant, and that the Applicant contacted HRSDC about this. Recovery
efforts, which are suspended pending, inter alia, appeals before this
Court, resume when a final judgment is rendered. This overpayment of employment
insurance benefits was ascertained after the Minister of National Revenue
decided, at the insurability and appeals stages, that Mr. Savoie's
employment with D.L. Logging Express Ltd. was not insurable. The Court
dismissed the appeal from this determination in its judgment of
January 10, 2006.
In view of the lack of
an explanation by the Applicant with regard to the three‑month delay, it
cannot be concluded with certainty that the resumption of HRSDC's recovery
measures prompted Mr. Savoie to bring his motion such a long time after
receiving the judgment. However, we submit that this ground would not warrant
setting aside the judgment.
Lastly, it is our
opinion that, on a balance of probabilities, the Applicant received notice of
the hearing of his appeal and could reasonably have been expected to attend on
the day of the hearing. The Court correctly dismissed the appeal in the
Applicant's absence, and thus the Court's judgment should not be set aside.
Cordially,
Stéphanie Côté
Counsel, Tax Litigation Directorate
C.c. Mr. Jean-Eudes Savoie
[10] The Applicant set
out his position regarding Ms. Côté's opinion in his letter to
Ms. Pilon dated April 18, 2006. I shall reproduce the
Applicant's letter below:
[TRANSLATION]
Jean-Eudes Savoie
P.O. Box 2146
Lamèque, NB E8T 3N7
April 18, 2006
FILE NO.: 2004-4049 (EI)
Ms. Lucie Pilon
Main Office
200 Kent Street
Ottawa ON K1A 0M1
Dear Ms. Pilon,
Further to
the letter dated April 11, 2006, which I received on April 18, I wish to make
the following clarifications:
·
On
January 11, 2006, when I received notice of the Court's judgment, I contacted
the Tax Court of Canada at the telephone number on the letter enclosed with the
judgment, and was told that I should send a written explanation, which I did on
January 17, 2006.
·
The
registered letter that I sent you on April 5, 2006, explaining the
situation, was in fact the same letter that I sent on January 17, 2006,
further to the letter with the Court's judgment. Only the date was changed.
·
When
I received the letter from the Government of Canada dated March 13, 2006, stating that they
would use the tax refunds or payments of credits to which I would be entitled, I
contacted the Tax Court of Canada to find out what was going on. This is when I
was told that the letter of January 17, 2006, was not in my file,
hence the registered letter of April 5, 2006, which, incidentally,
explains the three-month delay. The only reason that I did not verify receipt
of the letter earlier is that we are accustomed to such long waits before
receiving news about our correspondence.
·
It
is true that I made an inadvertent mistake in my appeal to the Tax Court of
Canada, but it is strange that I received correspondence, even registered
correspondence, at this address thereafter, except for the registered notice of
hearing and the notice of hearing which was sent by regular mail?!? Faced
with this situation, I went to Canada Post for information. They told me that a
letter that is addressed to the wrong box and is brought back to the office is
returned to the sender. Sometimes, though, the address is corrected if the
employee knows the addressee. But Canada Post was unable to give me further
particulars regarding the two letters referred to in Ms. Côté's correspondence.
They told me that the owners of Box 2148 may not have claimed the registered letter
because it was not addressed to them, and that they did not return the letter
that had been sent by regular mail. In any event, I think that the notice of
hearing should not have been sent by regular mail. A telephone call would have
settled the situation.
I hereby confirm that
neither of the two notices of hearing referred to in the
April 11, 2006, letter by Ms. Côté was . . . received by me.
I trust that this
situation can be resolved expeditiously.
Yours very
truly,
Jean-Eudes Savoie
Encl.: Letter of
April 11, 2006
Letter of
January 17, 2006
[11] The Applicant did
not provide any new facts at the hearing.
[12] The procedure in a
motion to set aside a judgment is set out in the Tax Court of Canada Rules
(General Procedure). The following excerpt from those Rules applies in the
instant case:
Tax
Court of Canada Rules (General Procedure)
Setting
Aside, Varying or Amending Accidental Errors in Judgments – General
172. (2) A party who seeks to,
(a) have a judgment
set aside or varied on the ground of fraud or of facts arising or discovered
after it was made,
. . .
may make a motion for
the relief claimed.
According to this Rule, the relief
sought by the Applicant must be based on the existence of "fraud or facts
arising or discovered after it was made."
[13] The onus is on the
Applicant to prove one of these elements on a balance of probabilities, but
such proof has not been made.
[14] In addition, as Ms. Côté
noted in her letter reproduced above, the Applicant was unable to explain why he
received some documents, but not others, at
Post Office Box 2148.
[15] Moreover, the Applicant's
delay in bringing his motion was not explained, and it coincides with the
measures that HRSDC undertook to recover the overpayment, thereby casting doubt
on the Applicant's credibility, and, consequently, on the merits of his case.
[16] For these reasons,
the motion is dismissed.
Signed at Grand‑Barachois,
New Brunswick, this 7th day of July 2006.
Deputy
Judge Savoie
Translation certified true
on this 20th day of February 2008.
Brian McCordick, Translator
Email this Content