Citation: 2013TCC192
Date: 20120618
Docket: 2012-4503(IT)APP
BETWEEN:
ANDREA HAMILTON,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
V.A. Miller J.
[1]
This is an application
for extension of time for Andrea Hamilton to file an appeal of the
reassessments for her 2008 and 2009 taxation years. The application was filed
by her lawyer Dale Barrett on November 12, 2012.
[2]
The Respondent has
opposed this application on the basis that it was filed beyond the 90 day
period allowed by section 169 of the Income Tax Act (the “Act”).
In support of its position, the Respondent relied on the affidavit of Maggie
Chiu, an officer in the Toronto Litigation Office of the Canada Revenue Agency
(“CRA”). The affidavit disclosed that a Notice of Confirmation for the
Applicant’s 2008 and 2009 taxation years was mailed to the Applicant and a copy
was sent to her lawyer on August 7, 2012. The 90 days following the date of
mailing of the confirmation was November 5, 2012. Consequently, this
application was filed 7 days late.
[3]
The Respondent filed
its Reply opposing this application and the affidavit of Maggie Chiu on April
26, 2013. Both the Reply and the affidavit were sent by registered mail on
April 27, 2013 to Mr. Barrett and they were received by him on May 1, 2013.
[4]
On May 8, 2013, Mr.
Barrett filed the affidavits of Andrea Hamilton and Gordon Buchan in support of
this application. These affidavits were sent to counsel for the Respondent at
5:19 P.M. on May 8. Counsel confirmed receipt of the affidavits and asked that
the affiants be present at the hearing of this application on May 10, 2013.
[5]
Neither affiant was
present at the hearing.
[6]
Counsel for the
Respondent has not been given an opportunity to question the affiants on their
affidavits and I find that there are questions that arise from both affidavits.
[7]
Gordon Buchan’s
affidavit was not completed in accordance with section 19 of the Tax Court
of Canada Rules (General Procedure) (“the Rules”). Neither of the
documents attached to the affidavit and marked as exhibit “A” and exhibit “B”
was endorsed by the person before whom the affidavit was sworn. The affidavit
was sworn in Montreal and the documents attached as exhibits are from Mr.
Barrett’s office in Toronto. It appears to me that these documents were
attached to the affidavit after it was completed.
[8]
One of the exhibits
attached to both affidavits was an email from a person called Lang Lam which
contained an email from the Applicant to Gordon Buchan. There was no
explanation given for Lang Lam’s email.
[9]
In her affidavit, the
Applicant stated that she instructed Barrett Tax Law to file a Notice of Appeal
within the time limited under section 169 of the Act. She also stated
that she did not know why Barrett Tax Law had to file an application for
extension of time because the firm should have been able to file the Notice of
Appeal on time. However, in the application for extension of time, Dale Barrett
states that the Notice of Appeal was not filed on time because his client was
unable to “come up with the appropriate filing fee until now”.
[10]
Counsel for the
Applicant stated that the Applicant had a bone fide intention to appeal the
reassessment of her 2008 and 2009 taxation years. In effect, his argument is
that the delay in filing the Notice of Appeal was caused by negligence in his
office.
[11]
Counsel for the
Applicant relied on the decision in Dufour v MNR, [1989] TCJ No. 902 for
the proposition that where a taxpayer’s failure to file a Notice of Appeal
within the time period was due to a mistake by an accountant or lawyer, the Tax
Court has often ruled in favour of an application by a taxpayer.
[12]
In Dufour, the
taxpayer gave evidence at the hearing and his evidence was accepted. He was
able to satisfy the court that he met the conditions of paragraph 167(5)(b)
of the Act which are:
(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)
(iv) there are reasonable grounds for the appeal.
[13]
In the present
application, the Applicant did not appear to give evidence nor was she
available to be cross examined on her affidavit. She does not speak to the
filing fee in her affidavit which was the sole reason given in the application
for not filing the Notice of Appeal on time. Her affidavit raised questions about
the reasons for not filing the appeal within 90 days and it is questionable
whether the reasons given in her affidavit were correct. I find that I do not
know the real reason why the Applicant’s Notice of Appeal was not filed on
time.
[14]
Counsel for the
Applicant also relied on the decision in Miniotas v Canada, 2011 TCC 43
where the court gave the benefit of doubt to the taxpayer and found that a
letter addressed to the Tax Court but sent to the CRA was a valid application
for an extension of time to appeal. I note that in that case, the taxpayer
appeared at the hearing of the application. The court could not find out why
the letter was sent to the CRA instead of the Tax Court because the author of
the letter had died.
[15]
The question in this
application is whether in the circumstances of this case, it would be just and
equitable to allow the application for extension of time.
[16]
Given that there are
conflicting reasons given in the application and the Applicant’s affidavit for
the delay in filing the Notice of Appeal, the evidence of the Applicant is
relevant. The Applicant should have been available to testify at the hearing: Alexandre
v. Canada, 2005 TCC 414. Counsel for the Respondent asked for the affiants
to be present at the hearing. On May 9, 2013, counsel for the Applicant wrote
that they could not attend. No explanation was given.
[17]
The Applicant knew well
in advance of the hearing of this application that the Respondent intended to
oppose the application. However, counsel for the Applicant filed and served the
Applicant’s affidavit one day before the hearing when it should have been filed
and served at least seven days prior to the hearing in accordance with
subsection 67(6) of the Rules. This would have allowed counsel for the
Respondent an opportunity to cross examine the Applicant on her affidavit.
[18]
In conclusion, I have
given the affidavits no weight because the affiants should have been made
available for cross-examination.
[19]
The application is
dismissed and the Respondent is awarded costs of $500.
Signed at Ottawa, Canada, this 18th day of June 2013.
“V.A. Miller”
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