Date: 20010731
Docket: T-757-01
Neutral Citation: 2001 FCT 846
BETWEEN
In the matter of the Income Tax Act,
and
In the matter of an assessment or assessments established by
the Minister of National Revenue under one or more of the following Acts:
the Income Tax Act, the Canada Pension Plan
and the Employment Insurance Act,
AGAINST
NADINE DESGAGNÉ
Judgment debtor
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion for additional time in which to file a motion under section 225.2(8) of the Income Tax Act.
[2] The reasons cited for obtaining a delay are that the review and preparation of the record would have required a significant amount of time and that the presentation of the motion was delayed by the vacations of the Court and of counsel for the applicant.
[3] In support of her motion, the applicant submits an affidavit dated July 25, 2001.
[4] According to the facts, the applicant's property were the subject of a seizure on May 9, 2001.
[5] Two days later, on May 11, 2001, the applicant met with her attorney and instructed him to take carriage of the matter.
[6] Considering that the order for immediate execution had been served on the applicant on May 9, 2001, she had until June 8, 2001 to present a motion for review.
[7] It was not until July 25, 2001 that the applicant filed her motion for an extension of time accompanied by a motion for review of the order.
[8] Subsection 225.2(8) of the Act allows an application to the Court for review of the authorization for immediate execution. Subsection 225.2(9) provides that this review application shall be presented within 30 days following the date of service of the authorization for immediate execution.
[9] Subsection 25.2(9) reads as follows:
| (9) Limitation period for review application - An application under subsection (8) shall be made
(a) within 30 days from the day on which the authorization was served on the taxpayer in accordance with this section; or
(b) within such further time as a judge may allow, on being satisfied that the application was made as soon as practicable.
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(9) Délai de présentation de la requête - La requête visée au paragraphe (8) doit être présentée :
a) dans les 30 jours suivant la date où l'autorisation a été signifiée au contribuable en application du présent article;
b) dans le délai supplémentaire que le juge peut accorder s'il est convaincu que le contribuable a présenté la requête dès que matériellement possible.
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[10] The Act clearly specifies that in order to grant an extension of time, the Court must be satisfied that the applicant filed an application for review of the order as soon as practicable (emphasis added).
[11] Unfortunately, the applicant was unable to explain or to demonstrate why the review application could not practicably be filed within the prescribed limitation period.
[12] The reason cited by the applicant's counsel, that he needed more time in which to review the file, cannot constitute a reason justifying the delay. In Moreno v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. no. 218 (Registry no. IMM-3224-95) (QL), Prothonotary Morneau stated:
5 It is well settled that the Court first expects the time limits set out in the Rules to be complied with and that an automatic extension is not available merely because one is requested. [See Note 1 below] Thus, Strayer J. (then of the Trial Division) noted in Beilin [See Note 2 below] that in applying for an extension
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Note 1: See Chin v. Canada (Minister of Employment and Immigration) (1994), 22 Imm. L.R. (2d) 136, at p. 138 (Chin).
Note 2: Beilin v. Minister of Employment and Immigration (1995), 88 F.T.R. 132.
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. . . [A]n applicant must show that there was some justification for the delay throughout the whole period of the delay and that he has an arguable case (see e.g. Grewal v. M.E.I., [1985] 2 F.C. 263, 63 N.R. 106 (F.C.A.)).
(emphasis added)
6 It is thus necessary to show or justify these elements rather than just laconically stating that they are present.
...
16 Counsel for the applicants argued in her written representations that the applicants must not be prejudiced by her actions. This is certainly an unfortunate situation for the applicants, but the Court stated the following about such a situation in Chin:
I know that courts are often reluctant to disadvantage individuals because their counsel miss deadlines. At the same time, in matters of this nature, counsel is acting in the shoes of her client. Counsel and client for such purposes are one. It is too easy a justification for non-compliance with the rules for counsel to say the delay was not in any way caused by my client and if an extension is not granted my client will be prejudiced. [See Note 7 below]
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Note 7: Chin, supra, note 1, at p. 139.
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[13] In Jacques Nepveu v. National Parole Board, 96-T-30 (May 29, 1996) (unreported), Noël J. states:
[Translation]
However, I must take note of the fact that it was not until three months after the Appeals Division rendered its decision that the applicant filed his motion in the Superior Court. Counsel explains this delay by the difficulty of the case he had to put together in order to present his motion. I must question the sufficiency of this explanation.
...
Counsel for the applicant cites as sole justification the difficulty of the case. That is not a sufficient explanation, keeping in mind the length of the delay.
To obtain an order extending the time, the applicant had to provide in regard to his delay a justification tantamount to something other than dawdling or loafing about, and applying to the entire period in question. The evidence before me fails to meet this requirement.
For these reasons, the motion is dismissed.
[14] Moreover, to succeed on an application for an extension of time, the applicant also had to demonstrate that she had an arguable case. To this effect, the applicant's counsel informed the Court that the affidavit in support of the motion for an extension of time signed by the applicant also had to be considered as being in support of the allegations on the merits of the case.
[15] Unfortunately, this affidavit has very little to say in reply to the allegations that had led to the issuance of the order of May 7, 2001 and the written representations by counsel in support of the review motion are not supported by the affidavit signed by the applicant, and in any event these written representations cannot be considered sufficient to demonstrate the existence of an arguable case.
[16] Consequently, the Court dismisses this motion with costs.
Pierre Blais
J.
Montréal, Quebec
July 31, 2001
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010731
Docket: T-757-01
BETWEEN
In the matter of the Income Tax Act,
and
In the matter of an assessment or assessments established by the Minister of National Revenue under one or more of the following Acts:
the Income Tax Act, the Canada Pension Plan
and the Employment Insurance Act,
AGAINST
NADINE DESGAGNÉ
Judgment debtor
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: T-757-01
STYLE:
In the matter of the Income Tax Act,
and
In the matter of an assessment or assessments established by
the Minister of National Revenue under one or more of the following Acts:
the Income Tax Act, the Canada Pension Plan
and the Employment Insurance Act,
AGAINST
NADINE DESGAGNÉ
Judgment debtor
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: July 30, 2001
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE BLAIS
DATED: July 31, 2001
APPEARANCES:
Sophie-Lyne Lefebvre For the judgment creditor
Eric Morin For the judgment debtor
SOLICITORS OF RECORD:
Department of Justice Canada For the judgment creditor
Montréal, Quebec
Eric Morin For the judgment debtor
Montréal, Quebec
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