Sirois v. M.N.R., docket 96-2002-UI

Date: 19971017

Docket: 96-2002-UI

BETWEEN:

RÉGIS SIROIS,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons For order

Prévost, D.J.T.C.C.

[1] These applications were heard on September 15 and 16, 1997 at Rivière-du-Loup, Quebec.

[2] On July 4, 1996 the Minister of National Revenue (“the Minister”) ruled that the appellant’s employment with Gouttières KRT Inc., the payer, from October 23, 1989 to October 28, 1994 was not insurable because the appellant had de facto control of over 40 percent of the payer’s voting shares and because the employment was not held under a contract of service.

[3] The Minister sent this ruling to the appellant and the payer by letter the same day at the following address: “40 Rang 1, apt. 2, St-Antonin, Que. G01 2J0”; on this covering letter there is under the heading [TRANSLATION] “Our reference” the following entry [TRANSLATION] “CPP/UI Appeals Division Ref.: Claude Martel . . .”.

[4] On January 16, 1997 the Minister filed a Notice of Motion reading as follows:

[TRANSLATION]

TAKE NOTE that the respondent will be filing an application in the Tax Court of Canada, Rivière-du-Loup, at 9:30 a.m. on March 11, 1997 in the courthouse at 33 Rue de la Cour, Room 4.10, to dismiss the appeal filed by the appellant on the ground that the appeal is statute-barred and futile, since it was not filed within the ninety-day period specified in s. 70(1) of the Unemployment Insurance Act, R.S.C. 1985, c. U-1;

AND TAKE NOTE that in support of this motion the affidavit of Yves Fortier, appeals officer with the Department of National Revenue, and any other documentation that may be considered useful, will be filed;

ALSO TAKE NOTE that if the Court decides that the appellant’s appeal was validly filed the respondent will by this motion ask for an extension of time to file his Reply to the Notice of Appeal.

[5] Yves Fortier’s affidavit reads as follows:

[TRANSLATION]

I the undersigned, Yves Fortier, having an office at the Department of National Revenue, 305 Boul. René Lévesque ouest, Montréal, having been duly sworn, make the following deposition:

1. I am an appeals officer with the Department of National Revenue and have examined the appellant’s file with this Department; I have personal knowledge of the facts mentioned below;

. . . . .

(b) As appears from the record of the Tax Court of Canada, on October 4, 1996 the appellant filed a Notice of Appeal in the Registry of that Court from the Minister’s notification dated July 4, 1996;

(c) The Notice of Appeal for the period from October 23, 1989 to October 28, 1994 was filed over 90 days after the appellant was informed of the Minister’s ruling dated July 4, 1996;

(d) To my knowledge the appellant has not to date requested an extension of time to file his notice of appeal;

(e) All the facts alleged in this affidavit are true.

[6] On March 11, 1997 the hearing of this motion was adjourned and the date of September 15, 1997 subsequently fixed for its submission.

[7] On September 12, 1997 Jérôme Carrier, an attorney, filed the following Notice of Motion on behalf of his client Régis Sirois:

[TRANSLATION]

TAKE NOTE THAT:

The appellant will file an application for an extension of time in the Tax Court of Canada, Rivière-du-Loup, at 9:30 a.m. on September 15, 1997 in the courthouse located at 33 Rue de la Cour, Room 4.10, the purpose of the said application being to obtain an extension of time in order to file an appeal with the Tax Court of Canada as provided in s. 70(1) of the Unemployment Insurance Act (R.S.C. 1985, c. U-1).

FURTHER TAKE NOTE THAT:

In support of this application a sworn statement by Régis Sirois and all other documents considered useful and necessary in support of the said application shall be filed.

[8] The application for an extension of time reads as follows:

[TRANSLATION]

1. In the week of July 29, 1996 the appellant received a letter dated July 26, 1996 and ministerial Notifications dated July 4 of that year, a copy of the said letter of July 26, 1996 and of the ministerial Notifications being filed in support hereof to have effect as if set out at length herein, as exhibit No. R-1;

2. In early September 1996 the appellant met with Pierrette Lévesque and at the said meeting instructed her to file an appeal in the Tax Court of Canada from the rulings dated July 4, 1996;

3. Ms. Lévesque did file an appeal in the Tax Court of Canada on October 3, 1996, a copy of the said appeal being filed in support hereof to have effect as if set out at length herein, as exhibit No. R-2;

4. On October 29, 1996 the Registry of the Tax Court of Canada sent Ms. Lévesque an acknowledgement of receipt of the Notice of Appeal, a copy of the said acknowledgement being filed in support hereof to have effect as if set out at length herein, as exhibit No. R-3;

5. The appellant had no news from his counsel except that on July 16, 1997 the appellant received a letter from Jean-Paul Boucher and attached to this letter was another letter dated July 9, 1997 to Mr. Boucher from Louise Rivard, hearing coordinator with the Tax Court of Canada, copies of the said letters being filed in support hereof to have effect as if set out at length herein, as exhibit No. R-4;

6. On September 10, 1997 the appellant contacted the undersigned counsel and informed him that he wished to use his services at the hearing scheduled for September 15, 1997 in the Tax Court of Canada;

7. The appellant is not in any way responsible for the delay in the filing and processing of the Notice of Appeal in the Tax Court of Canada;

MAY IT ACCORDINGLY PLEASE THIS COURT:

TO GRANT the appellant an extension of time for filing the Notice of Appeal dated October 3, 1996;

AUTHORIZE the filing of the said Notice of Appeal and

GRANT the appellant the right to be heard in this Court . . .

[9] By consent of the parties through their counsel the two applications were heard concurrently.

[10] The letter of July 26, 1996 alleged in paragraph (1) of the application for an extension of time reads as follows:

[TRANSLATION]

Régis Sirois

C.P. 727

Rivière-du-Loup, Que.

G5R 3Z3

CPP/UI Appeals Division

Ref.: Claude Martel

Tel.: (418) 648-3952

Fax: (418) 649-6524

Québec, July 26, 1996

RE: Unemployment Insurance Act

Dear Sir:

Please find enclosed herewith the ministerial Notifications sent to you by registered letter on July 4, 1996 to the aforementioned address. The letters were returned to us by the post office with the notation “Unclaimed”.

We are again sending them to you by registered mail.

Yours truly,

Claude Martel

Appeals Officer

For the Chief of Appeals

[11] It is worth noting the change of address to “C.P. 727, Rivière-du-Loup, Que. G5R 3Z3” and the same entry as on the letters of July 4, 1996 under the heading “Our reference”.

[12] It is true that the Notice of Appeal was mailed on October 3, 1996, according to Exhibit R-5 filed in support of the application for an extension of time, but according to counsel for the appellant it was less than 90 days after July 26, 1996.

Appellant's evidence for extension of time

According to Régis Sirois

[13] He never received the determination letter of July 4, 1996 though his address has always been the same.

[14] However, he did not recall whether he had received a notice from the post office asking him to go and pick it up there.

[15] He was indeed a shareholder in the payer and the post office box indicated on the letter of July 26, 1996 above is in fact the one used by the payer.

[16] In his Application for Determination of a Question regarding Insurable Employment (Exhibit I-1) of June 15, 1995 he wrote:

[TRANSLATION]

Name of employer June 19, 1995

Gouttières K.R.T. Inc.

Address in full

C.P. 727

Rivière-du-Loup

G5R 3Z3

Name of worker Social Insurance

(print): Number

Régis Sirois 232096834

Address in full

(print)

40 - 2, Rang 2

Saint-Antonin, G0L 2J0

Period for which the Kind of Rate of pay

determination is to be made work performed

From: 23/10/89 Labourer $500/week

To: 28/10/94

[17] He did see that two Revenue Canada envelopes (Exhibit I-2) were returned to the sender on July 22, 1996 as being unclaimed after a notice had been sent on July 8, 1996 and a call made on July 15, 1996, but neither he nor the payer ever received the letter dated July 4, 1996.

[18] It is very possible that he answered a telephone call from the appeals officer Claude Martel between July 4 and 26, 1996, as his name was familiar.

Argument

According to counsel for the appellant Régis Sirois

[19] The actual communication was made on July 26, 1996 and the appeal deadline was met.

[20] In his affidavit Yves Fortier was careful not to mention the letter of July 26, 1996 from Claude Martel.

[21] The Court does not have to decide the application for an extension of time in ruling on the application to dismiss the appeal.

According to counsel for the Minister

[22] His client had no obligation to use registered mail.

[23] In doing so he may have been overzealous, but can he really be blamed?

[24] Section 5(2) of the Tax Court of Canada Rules (Unemployment Insurance) reads as follows:

Where a determination or decision . . . is communicated by mail, the date of communication is the date it is mailed and, in the absence of evidence to the contrary, the date of mailing is that date specified on the determination or decision.

[25] The starting-point of the deadline is not the date the letter of determination is received but the date of its communication.

[26] In Attorney General of Canada v. John F. Bowen, [1992] 1 F.C. 311, Stone J. wrote for the Court (at 314):

In our opinion, the duty resting upon the Minister under subsection 165(3) was to do precisely what he did, viz., notify the respondent of the confirmation by registered mail. Nothing in that subsection or in section 169 required the notification to be “served” personally or to be received by the taxpayer. In dispatching the notification by registered mail the Minister was entitled to avail himself of the address or addresses which the respondent himself had already furnished. There was no obligation on him to look beyond that information. Moreover, a requirement for the receipt of the notification would be difficult if not totally unworkable from an administrative standpoint. Parliament has not required it; it has required merely that the notification be dispatched by registered mail.

[27] The 90-day deadline is not mentioned in the letter from the appeals officer on July 26, 1996.

[28] For the application for an extension of time to be allowed the Court would have to find that the first letters of July 4, 1996 were not sent.

[29] In Richard Gaudreau and Her Majesty the Queen (95-1849(IT)I) Judge Lamarre Proulx of this Court wrote (at 4):

It is possible that this is not an irrebuttable presumption and that the way to rebut it is for the appellant to produce the original envelope or to show that the Minister did not send the notice to the correct address in spite of the fact that a formal change of address notice was duly sent.

According to counsel for Régis Sirois in reply

[30] The letter from the appeals officer Claude Martel to the counsel’s client on July 26, 1996 did indicate that the Department attaches importance to its rulings not only being sent but being received as well.

[31] The letter clearly stated [TRANSLATION] “We are sending them over again to you”, which means that the 90 days began to run only from the new date it was sent.

[32] The Minister must always have clean hands and he certainly made an error by sending his letter of July 4, 1996 to the payer at an address other than the one appearing in Exhibit I-1.

[33] If he had not made this error the letter to the payer dated July 4, 1996 would certainly have reached the counsel’s client, who is a shareholder in the payer.

[34] An individual must be informed in due time of any ministerial ruling affecting him. In the instant case, the counsel’s client did not learn of this ruling until after July 26, 1996.

Analysis

[35] In view of Exhibit I-1 the Minister should not have sent his letter of determination of July 4, 1996 to the payer at the address to which he sent it. This was an error on his part.

[36] If that error had not been made the payer would have received this letter and the appellant, in his capacity as shareholder, would certainly have been informed of it.

[37] The letter to the appellant from the appeals officer Claude Martel on July 26, 1996 was erroneous as the ministerial Notifications of July 4, 1996 were not sent to him at the payer’s address.

[38] Reading Revenue Canada’s letters of July 4 and 26, 1996, the appellant did see the name of Claude Martel and so was entitled to conclude that the 90-day deadline mentioned in the letter of July 4, 1996 in the following terms: [TRANSLATION] “If you are not in agreement you may appeal this ruling to the Tax Court of Canada within 90 days of the sending of this letter” did not begin to run until July 26, 1996.

[39] The Court believes completely the appellant’s statement that he never received the letter of determination of July 4, 1996.

[40] The evidence did not disclose the precise reason why the letter of July 4, 1996 did not reach the appellant, but one thing is certain: if it had been sent to the payer’s correct address he would have received it.

[41] The appeals officer, acting for the Chief of Appeals, did want the appellant to be aware of the ruling affecting him and that is undoubtedly why he contacted him by telephone and then sent him his letter of July 26, 1996.

[42] It is significant that in his sworn statement Yves Fortier made no mention of the letter dated July 26, 1996.

[43] Counsel for the appellant suggested that in ruling on the motion to dismiss the appeal the Court did not have to decide the application for an extension of time, but the Court is not of this view and feels that both applications should actually be disposed of so that there is nothing left outstanding.

[44] It is true the Minister did not have to use registered mail but this did enable Claude Martel to see that the ministerial Notification of July 4, 1996 had not been sent to the payer at its correct address.

[45] There is section 5(2) of our Rules, it is true, but in the instant case Claude Martel, acting for the Chief of Appeals, wanted to correct his error by his letter of July 26, 1996: this is to his credit but the fact remains that by acting in this way he led the appellant to think that the appeal deadline only began on that date.

[46] The decision in Bowen is very interesting, but in the instant case Claude Martel thought he should seek further information and send the letter of July 4, 1996 again, and in so doing he caused the appellant as aforesaid to think that the time for filing an appeal only began to run on July 26, 1996.

[47] It is true that the 90-day deadline is not mentioned in the letter of July 26, 1996 but it is clearly mentioned in its appendix, the letter of July 4, 1996.

[48] Within the meaning of the decision in Gaudreau it is clear that the Minister did not send the notice of July 4, 1996 to the payer’s correct address, despite formal notice in Exhibit I-1.

[49] It is clear that the time in which an appeal may be filed did not begin to run until July 26, 1996 and that by appealing on October 3, 1996 the appellant did so within the specified time.

[50] The respondent’s motion to dismiss the appeal is dismissed and he is given 60 days within which to file his Reply to the Notice of Appeal, and the notice of appeal dated October 3, 1996 is considered as having been validly filed.

" A. Prévost "

D.J.T.C.C.

[OFFICIAL ENGLISH TRANSLATION]

Translation certified true on this 25^th day of November 1997.

Mario Lagacé, Revisor