Citation: 2013 TCC 185
Date: 20130612
Docket: 2013-303(IT)G
BETWEEN:
KIRK HAYNES,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
AMENDED REASONS FOR ORDER
(The reasons are amended solely to add a citation. The
text has not
been changed.)
Woods J.
[1]
The Crown brings a motion for:
1.
An Order under paragraph 58(1)(b) of the Rules striking out the Notice
of Appeal on the ground that it discloses no reasonable grounds for appeal;
2.
In the alternative, an Order under paragraph 53(b) of the Rules
striking out the Notice of Appeal on the ground that the Notice of Appeal is
scandalous, frivolous or vexatious;
3.
In the alternative, an Order under paragraph 53(c) of the Rules
striking out the Notice of Appeal on the ground that the Notice of Appeal is an
abuse of process;
4. In
the alternative, an Order under section 169 of the Act striking out the
Notice of Appeal on the ground that it was commenced out of time;
5. In
the further alternative, an Order requiring the Appellant to seek an extension
of time to file a Notice of Appeal which does comply with the Rules, and
providing the Respondent with 60 days from the date of service of the Notice of
Appeal to file a Reply;
6.
In the alternative, an Order extending the time to file a Reply to the
Notice of Appeal pursuant to Rule 44(1)(b) of the Rules to 60 days after
the determination of this motion; and,
7. Costs of this
motion.
[2]
It is appropriate to first consider
whether the appeal was commenced out of time.
[3]
Under subsection 169(1) of the Income
Tax Act, an appeal is required to be
instituted within 90 days
from the mailing of the notice of confirmation. The provision reads:
169. (1) Appeal - Where a taxpayer has served
notice of objection to an assessment under section 165, the taxpayer may appeal
to the Tax Court of Canada to have the assessment vacated or varied after
either
(a) the Minister has confirmed the
assessment or reassessed, or
(b) 90 days have elapsed after service
of the notice of objection and the Minister has not notified the taxpayer that
the Minister has vacated or confirmed the assessment or reassessed,
but no appeal under this
section may be instituted after the expiration of 90 days from the day notice
has been mailed to the taxpayer under section 165 that the Minister has
confirmed the assessment or reassessed.
(Emphasis added)
[4]
According to the notice of appeal,
the notice of confirmation was dated October 19, 2012. Under the Act,
this is the deemed date of mailing provided that the notice was mailed. It is
not in dispute that the notice was mailed, and it was responded to by notice of
appeal filed with the Court on January 22, 2013. It appears that Mr. Haynes
filed the notice of appeal a few days after the 90-day deadline had expired.
[5]
In written submissions filed at the
hearing, Mr. Haynes submits that the notice of appeal should be considered to
be filed on a timely basis because:
a)
section 11(b) of the Tax Court
of Canada Rules provides that the December holiday period is to be excluded
from the calculation of time; and
b)
the Court has jurisdiction under
section 12(1) of the Rules to allow the notice of appeal to stand.
[6]
These provisions do not assist in
extending the 90-day deadline set out in the Act because they only apply
for purposes of the Rules or a direction. The provisions do not, and cannot,
modify the deadline imposed by Parliament under the Act.
[7]
The limited application of the
Rules is apparent on their face. They are reproduced below:
Computation
11. In
the computation of time under these rules or a direction, except where a
contrary intention appears,
(a) […]
(b) the
period beginning on December 21 in any year and ending on January 7 of the next
year shall be excluded
Extension or
Abridgement
12. (1) The Court may extend or abridge any time prescribed by these
rules or a direction, on such terms as are just.
[8]
The deadline set out in
section 169 of the Act is firm and it was missed by a few days. As the
result, the appeal will be quashed.
[9]
However, this is not
the end of the matter because the time
has not expired for Mr. Haynes to make an application to extend time to
appeal. This application may be made pursuant to section 167 of the Act
which provides:
167. (1) Extension
of time to appeal - 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.
(2) Contents of application - An application made under
subsection (1) shall set out the reasons why the appeal was not instituted
within the time limited by section 169 for doing so.
(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.
(4) Copy to Deputy Attorney
General - The
Tax Court of Canada shall send a copy of each application made under this
section to the office of the Deputy Attorney General of Canada.
(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.
[10]
Section 167 sets out several conditions that must be satisfied
before an extension of time may be granted by the Court. I would note in
particular that Mr. Haynes must demonstrate that it is just and equitable
for the extension to be granted and that there are reasonable grounds for the
appeal.
[11]
The notice of appeal that was
previously filed by Mr. Haynes has several serious defects that would make it
difficult to satisfy these requirements. I suggested to Mr. Haynes at the hearing
that his application to extend time be accompanied by an amended notice of
appeal.
[12]
As for costs, it is appropriate to
award costs to the respondent in respect of this motion. The notice of appeal
that was filed with the Court has many obvious deficiencies, one of which was
that it was filed out of time without an extension being requested. These
deficiencies were set out in the Crown’s notice of motion, but no action was
taken to remedy them prior to the hearing. Costs in respect of the motion are
awarded to the respondent in the amount of $350, which shall be paid no later
than June 10, 2013.
[13]
The parties agreed to have an application to extend
time heard in Edmonton during the first week of July. The Registry is directed
to schedule the hearing on July 5, 2013 at 1 p.m., provided that the
application is filed no later than June 10, 2013.
These Amended Reasons for Order are issued in
substitution of the Reasons for Order dated May 17, 2013.
Signed at Ottawa, Ontario this 12th
day of June 2013.
“J. M. Woods”
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