Date: 20001124
Docket: 2000-2404-IT-APP
BETWEEN:
STEVEN OSOVSKI,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Order
Lamarre, J.T.C.C.
[1]
This is an application made by the applicant pursuant to
subsection 167(1) of the Income Tax Act
("Act") for an Order extending the time within
which an appeal may be instituted with respect to his 1998
taxation year. By Notification of Determination issued by the
Minister of National Revenue ("Minister") regarding the
goods and services tax credit ("GST credit") on August
27, 1999, the applicant was denied the GST credit for the 1998
taxation year on the basis that he was not an eligible individual
within the meaning of paragraph 122.5(2)(c) of the
Act which reads as follows:
SECTION 122.5: [Goods and services tax
credit]
. . .
(2) Persons not eligible individuals, qualified relations or
qualified dependants. Notwithstanding subsection (1), a
person shall be deemed not to be an eligible individual for a
taxation year or a qualified relation or qualified dependant of
an individual for a taxation year where the person
. . .
(c)
is, at the end of the year, confined to a prison or similar
institution and has been so confined for a period of, or periods
the total of which in the year was more than, 6 months.
[2]
Indeed, it is not in dispute that the applicant was at the end of
the year 1998 confined to a prison or similar institution and had
been so confined for a period of, or periods the total of which
in the year was more than, 6 months. In fact, at the time of the
hearing, the applicant had been confined in the Cowansville
Penitentiary serving a life sentence since 1995. The applicant is
however of the view that he has been discriminated against under
the above provision of the Act. He claims that his rights,
as guaranteed by the Charter of Rights and Freedoms, have been
infringed. This is why he is seeking to obtain an order extending
the time within which he may institute an appeal against the
determination by the Minister.
[3]
The important dates to be considered in this application are the
following. On September 22, 1999 the applicant served on the
Minister a Notice of Objection with respect to the Notice of
Determination of August 27, 1999. On November 5, 1999, the
Minister sent the applicant a Notification of Confirmation of
that determination. Although the time limit for filing a Notice
of Appeal pursuant to subsection 169(1) of the Act expired
on February 3, 2000, the applicant only filed his appeal in this
Court on April 7, 2000. He was advised by this Court on
April 27, 2000 that the appeal had been filed late and he
was informed of the possibility of filing an application for an
extension of time. The applicant filed such an application on
May 26, 2000.
[4]
To succeed in his application, the applicant must meet the
conditions prescribed by subsection 167(5) of the Act.
Subsections 167(1) and (5) read as follows:
SECTION 167: Extension of time to appeal.
(1) Where an appeal to the Tax Court of Canada has not been
instituted by a taxpayer under section 169 within the time
limited by that section for doing so, the taxpayer may make an
application to the Court for an order extending the time within
which the appeal may be instituted and the Court may make an
order extending the time for appealing and may impose such terms
as it deems just.
. . .
(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]
It is not questioned that the application was made within one
year after the expiration of the time limited by section 169 for
appealing. However, the applicant must also demonstrate that the
other conditions have been met in order to succeed. Among other
things, he must establish that he was unable to act or to
instruct another to act in his name or that he had a bona
fide intention to appeal between November 5, 1999 and
February 3, 2000.
[6]
The applicant acknowledged that he was aware of the procedure for
filing a Notice of Appeal before this Court. However, he
explained that during that period, he was concerned with his
mother who was suffering from Alzheimer's disease. He said
that he had made a request to the National Parole Board for
temporary leave to visit her. He also said that his father was
not in good health and passed away in the month of August
2000.
[7]
On cross-examination, he admitted that his request to the
National Parole Board was made in May 2000 and that the Board
acknowledged receipt of that request on August 4, 2000.
[8]
Ms. Alessandria Page, his unit manager at the penitentiary,
testified that she never heard that the applicant had concerns
with Revenue Canada during the period from November 5, 1999 to
February 3, 2000. This was never brought to her attention by the
applicant himself, his fellow inmates or any officer assigned to
the applicant's case. There was also no record of any such
concerns in the applicant's file. Ms. Page was aware
only of the applicant's mother's health problems. She
said that the applicant had easy access to stamps, envelopes and
courier service. She knew that the applicant was indebted to his
other inmates but she said that she could have provided the
applicant with sufficient funds for the aforementioned items if
necessary. She also said that the applicant had access to a
telephone on request.
[9]
The applicant was working during the week (for a very low salary)
and had all his evenings free. The applicant said that he did not
have the funds to pay for stamps during the period in question
and that he did not want to burden the unit manager with his
personal affairs.
[10] As for
the time spent by the applicant on his request to the National
Parole Board for a temporary leave, Ms. Page testified that the
applicant only had to fill in a line or two on a single-page
document and that it was the applicant's case management team
that took care of all the required procedures after that. She
said that the entire process was relatively short.
[11] On the
whole of the evidence, I find that the applicant has not shown on
a balance of probabilities that between November 5, 1999 and
February 3, 2000 he was unable to act or to instruct another to
act in his name to file his Notice of Appeal. I also find that he
has not demonstrated that he had a bona fide intention to
appeal during that period.
[12] The
applicant said that at that time he could not focus on his appeal
to this Court as he gave priority to his request to the National
Parole Board for a temporary leave to visit his mother.
[13] In fact
the evidence revealed that such a request to the National Parole
Board can be processed rather quickly. Furthermore, the request
was made by the applicant after the period at issue before
me.
[14] The
evidence also revealed that the applicant had access to all that
was necessary to file an appeal before this Court but did not
avail himself of the opportunity to do so within the time limit
for filing such an appeal. The applicant has not convinced me
that he was unable to act or to instruct another to act on his
behalf before February 3, 2000. Nor has he convinced me that he
had a bona fide intention to appeal before that date.
[15] Those two
requirements not having been met, the applicant has therefore not
satisfied all the conditions prescribed by subsection 167(5)
of the Act, which is essential if an application for an
extension of time is to be granted.
[16] For these
reasons, I have no choice but to dismiss the application.
Signed at Ottawa, Canada, this 24th day of November 2000.
"Lucie Lamarre"
J.T.C.C.
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