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Citation: 2005TCC200
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Date: 20050318
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Docket: 2004-3517(EI), 2004-3519(CPP)
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2004-3520(EI), 2004-3521(CPP)
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BETWEEN:
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JERRY P. POWER and PAULINE POWER,
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Appellants,
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and
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THE MINISTER OF NATIONAL REVENUE,
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Respondent.
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REASONS FOR ORDER
BowieJ.
[1] In 2002 a question arose as to
whether Jerry Power and Pauline Power were engaged in insurable
employment under the Employment Insurance (Fishing)
Regulations[1]
made pursuant to the Employment Insurance Act[2] (the Act). The
same question arose with respect to pensionable employment under
the Canada Pension Plan[3] (the Plan). A ruling was requested under
section 90 of the Act and section 26.1 of the Plan.
On December 23, 2002, an authorized officer of the Canada Customs
and Revenue Agency (the Agency) ruled that the Powers were not
insurable under the Fishing Regulations, but were engaged
in insurable employment under paragraph 5(1)(a) of the
Act and pensionable employment under paragraph
6(1)(a) of the Plan. These rulings concluded with
the advice that if the Powers so wished, they could appeal to the
Minister of National Revenue within 90 days pursuant to section
91 of the Act and section 27 of the Plan. They
decided to appeal to the Minister, and they instructed their
accountant accordingly. The 90th day following the rulings was
March 23, 2003. The Appellants' contention is that their
accountant filed their appeals before that date. The Respondent
contends that they did not. In any event, the accountant wrote to
the Agency's Chief of Appeals on April 8, 2004 as
follows:
We appealed a decision of the Canada Customs and Revenue
Agency with a letter dated March 10, 2003 with regard to the
insurability of Ms. Power's earnings with Grand Atlantic
Seafoods.
I met with Ms. Power on April 1, 2004 and she had informed me
she had yet to receive a response to our letter of appeal of
March 10, 2003 and that funds recently due her have been
redirected to reduce the amount HRDC claims is owed by Mrs.
Power.
We ask that you please look into this matter and inform us why
this appeal is taking this amount of time to process. We
understand that appeals take time but we are concerned that this
file may have been overlooked. We have enclosed a copy of our
original appeal for your review.
If you have any questions please call me at (709)
722-1100.
The reply that he received to that letter is dated June 2,
2004. It reads:
The Appeals Division of the Saint John N.B. Tax Services
Office has received your appeal concerning your employment with
Grand Atlantic Seafoods during the periods May 16, 2000 to
November 7, 2000 and November 5, 2001 to May 25, 2001.
Section 91 of the Employment Insurance Act and
Section 27 of the CanadaPension Plan Act (sic),
states that you must file an appeal to the Minister of National
Revenue within 90 days of being notified of the ruling. Your
ruling notice was dated December 24, 2002, and your original
request was postmarked on April 15, 2004.
Based on the above legislation, the request is late-filed and
cannot be accepted.
If you disagree with this decision you can appeal to Tax Court
of Canada within 90 days of the date of this letter. You can find
details on how to file an appeal in the enclosed document called
How to Appeal to Tax Court of Canada.
The Appellants treated this letter as being a decision of the
Minister on their appeals to him under section 91 of the
Act and section 27 of the Plan, and so on August
23, 2004, they each filed two Notices of Appeal in this Court,
purportedly under section 103 of the Act and section 28 of
the Plan. The Respondent now moves for Orders quashing
these four purported appeals on the basis that there are no
decisions of the Minister from which the appeals could be
brought.
[2] The positions of the parties are
simple, and in stark contrast. The Appellant led evidence from
the accountant to the effect that he had indeed launched the
appeals to the Minister within 90 days of the date of the
rulings, as the Act and the Plan require. What they
seek from this Court is a decision that their appeals were in
fact filed with the Minister within 90 days of the rulings, and
referring the matter back to the Minister to hear and determine
their appeals. The Respondent's position is that the appeals
were not filed in time, but even if they were, the June 2nd
letter is not a decision, or evidence of a decision, on an appeal
to the Minister, and so it cannot be the foundation for an appeal
to this Court, and so the appeals ought to be quashed.
[3] Sections 90, 91 and 103 of the
Act read 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 Customs and 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).
90(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.
90(3) The authorized officer shall make the
ruling within a reasonable time after receiving the request.
90(4) Unless a ruling has been requested
with respect to an insured person,
(a) an amount
deducted from the remuneration of the person or paid by an
employer as a premium for the person is deemed to have been
deducted or paid in accordance with this Act; or
(b) an amount
that has not been so deducted or paid is deemed not to have been
required to be deducted or paid in accordance with this
Act.
91 An appeal
to the Minister from a ruling may be made by the Commission at
any time and by any other person concerned within 90 days after
the person is notified of the ruling.
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 Courtof Canada in accordance
withthe 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.
Sections 26.1, 27 and 28 of the Plan are in essentially
the same terms. For the reasons that follow, I have reached the
conclusion that these appeals are not properly constituted and
that I must quash them.
[4] The Appellants rely on my decision
in Lord v. M.N.R.[4] In that case, this Court had to consider whether an
appeal could be brought from what purported to be a decision of
the Minister under section 70 of the Unemployment Insurance
Act,[5]which
was the predecessor statute, in circumstances where the decision
on the appeal to the Minister had been made by a person in the
Minister's department who did not have a delegation of
authority permitting him to make such decisions. I held that the
decision was nonetheless a decision of the Minister for purposes
of section 103, because it was an act of the department of
government for which the Minister was responsible, and it
purported to decide that which the Minister was empowered to
decide. While it might have been set aside as a result of
proceedings brought for that purpose, it was not a nullity in the
absence of any such attack. 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:
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... a person affected by a decision on an appeal
to the Minister under section 91 or 92 ...
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... une personne que concerne une décision rendue
au titre de l'article 91 ou 92 ...
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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.
[6] I have arrived at this conclusion
reluctantly, and not without some regret. It is a result that the
Appellants will not find satisfactory, because it resolves
nothing. They are left in the position that if they wish to
pursue a remedy they must do so in the Federal Court, as only
that Court can grant the remedy that they require. This is
undoubtedly inconvenient for Appellants, but that can only be
remedied by legislation giving this Court the authority to grant
a wider range of remedies. As the matter may be pursued in the
Federal Court, I do not propose to offer any view as to the
weight of the evidence that was given before me.
[7] The motions are allowed and Orders
will go quashing the appeals.
Signed at Ottawa, Canada, this 18th day of March, 2005.
Bowie J.
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