Docket: 2013-3708(CPP)APP
BETWEEN:
PREDRAG COVIC,
Applicant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
____________________________________________________________________
Application
heard on March 12, 2014 at Hamilton, Ontario
By: The Honourable
Justice J.M. Woods
Appearances:
|
Agent for the Applicant:
|
Violeta
Rakic
|
|
Counsel for the Respondent:
|
Jan Jensen
|
____________________________________________________________________
ORDER
Upon application for an
Order extending the time to institute an appeal with respect to a decision made
under the Canada Pension Plan, the application is dismissed.
The
Registry is directed to change the style of cause to reflect the proper name of
the applicant as noted above.
Signed at Toronto, Ontario this 7th day of April 2014.
“J.M. Woods”
Citation: 2014 TCC 105
Date: 20140407
Docket: 2013-3708(CPP)APP
BETWEEN:
PREDRAG COVIC,
Applicant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR ORDER
Woods J.
[1]
Predrag Covic seeks an Order
extending the time to institute an appeal with respect to a decision made under
the Canada Pension Plan. He submits that he had good reasons for missing
the deadline and that it would only be fair to grant the extension.
[2]
The respondent submits that the
application should be disallowed for two reasons.
(a) The
application was not made within the 180-day deadline set out in subsection
28(1) of the Canada Pension Plan.
(b) The applicant has not satisfied the
requirements under subsection 28(1.2) of the Canada Pension Plan because
he did not demonstrate that: (1) he was unable to institute an appeal within 90
days after the Minister’s decision was communicated, or (2) he had a bona
fide intention to appeal within the 90 day period.
[3]
Mr. Covic was represented at the
hearing by his bookkeeper, Violeta Rakic. Ms. Rakic also testified on Mr.
Covic’s behalf as he did not attend the hearing.
[4]
Ms. Rakic testified that it was
difficult for Mr. Covic to comply with the applicable deadlines. She stated
that Mr. Covic is a truck driver who is away from home almost all of the time,
and he has a family with young children.
[5]
Ms. Rakic also explained the
background to the Minister’s decision. The decision was a consequence of Mr.
Covic incorporating his trucking business. However, he did not conduct the
business on this basis and he kept operating as he had done before.
[6]
The Minister of National Revenue
issued a decision that Mr. Covic was an employee of the corporation, which gave
rise to obligations for Canada Pension Plan premiums as well as adverse
income tax consequences. Ms. Rakic stated that the financial impact of the
Minister’s decision on Mr. Covic is very significant and that he has been
overwhelmed by the entire situation.
Discussion
[7]
Mr. Covic asks for relief based on
fairness. I can understand Mr. Covic being overwhelmed by the situation that he
found himself in, and am sympathetic to this. However, relief cannot be granted
on the basis of fairness.
[8]
As explained in many court
decisions, limitation periods are set for good reasons and they must be
followed. Accordingly, if a limitation period set out in the Canada Pension
Plan is missed, the Court cannot provide relief.
[9]
Based on the applicable
legislative provisions and the evidence before me, I would conclude that the
application should be dismissed because Mr. Covic did not file the application
for an extension within the time required. Regrettably, the deadline was missed
by three days.
[10]
The relevant provisions are
subsections 28(1), (1.1) and (1.2) of the Canada Pension Plan, sections
5(2) and 5.2 of the Tax Court of Canada Rules of Procedure respecting the
Canada Pension Plan, and subsection 167(3) of the Income Tax Act.
These provisions are set out below.
Canada Pension Plan
28.(1) Appeal to
Tax Court of Canada - A person affected by a decision on an appeal to the
Minister under section 27 or 27.1, or the person’s representative, may, within
90 days after the decision is communicated to the person, or within any longer
time that the Tax Court of Canada on application made to it within 90 days
after the expiration of those 90 days allows, appeal from the decision to that
Court in accordance with the Tax Court of Canada Act and the applicable
rules of court made thereunder.
28.(1.1)
Communication of decision - The determination of the time at which a
decision on an appeal to the Minister under section 27 or 27.1 is communicated
to a person shall be made in accordance with the rule, if any, made under
paragraph 20(1.1)(h.1) of the Tax Court of Canada Act.
28.(1.2) Extension of time to appeal -
Section 167, except paragraph 167(5)(a), of the Income Tax Act applies,
with such modifications as the circumstances require, in respect of
applications made under subsection (1).
Tax Court of Canada Rules
5.(2) Where a ruling or decision
referred to in subsection (1) 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 ruling or decision.
5.2 Except as otherwise provided
in these rules and unless otherwise directed by the Court, the date of filing
of a document is deemed to be
(a) in the case of a document
filed with the Registry or sent by mail or by fax, the date shown by the date
received stamp placed on the document by the Registry at the time it is
received; or
(b) in the case of a document
filed by electronic filing, the date shown on the acknowledgment of receipt
issued by the Court.
Income Tax Act
167.(3) How application made - An application
made under subsection (1) shall be made by filing in the Registry of the Tax
Court of Canada, in accordance with the provisions of the Tax Court of Canada
Act, three copies of the application accompanied by three copies of the notice
of appeal.
[11]
In accordance with these
provisions and the evidence in this case, the limitation period for this
application is 180 days and it starts to run from the date that the Minister’s
decision is mailed, as stated in the decision. The mailing date as stated in
the decision is March 21, 2013 (Exhibit C to Affidavit of Sandra Stewart).
[12]
The limitation period ends 180
days later, which is September 17, 2013. Unfortunately, Mr. Covic did not make
the application by this date. The application letter is dated September 19,
2013 and it bears a filed stamp of the Registry dated September 20, 2013
(Exhibit D to Affidavit of Sandra Stewart). It is clear that the application
was not filed by the deadline of September 17, 2013.
[13]
Since the limitation period has
been missed, this application should be dismissed.
[14]
Before concluding, I would comment
that the result in this case is harsh. Not only was the deadline missed by a
very short period, but if the legislation had provided a deadline of six months
instead of 180 days, the application would have been made in time.
[15]
Although the circumstances are
sympathetic, there is no relief that this Court can provide. The application
will be dismissed.
Signed at Toronto, Ontario this 7th day of April 2014.
“J.M. Woods”
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