Date: 19990112
Docket: A-89-98 and A-90-98
CORAM: STONE J.A.
STRAYER J.A.
DÉCARY J.A.
BETWEEN:
TOURAN BAZLI AND AZIZOLLAH AZADGAZNI
O/A COMPUTER MONITOR SERVICE,
A PARTNERSHIP
Applicants
- and -
HER MAJESTY THE QUEEN
Respondent
Heard at Toronto, Ontario, Tuesday, January 12, 1999
Judgment delivered from the Bench
at Toronto, Ontario on Tuesday, January 12, 1999
REASONS FOR JUDGMENT OF THE COURT BY: STONE J.A.
Date: 19990112
Docket: A-89-98 and A-90-98
CORAM: STONE J.A.
STRAYER J.A.
DÉCARY J.A.
BETWEEN:
TOURAN BAZLI AND AZIZOLLAH AZADGAZNI
O/A COMPUTER MONITOR SERVICE,
A PARTNERSHIP
Applicants
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario on
Tuesday, January 12, 1999)
STONE J.A.:
[1] These are applications for certiorari to quash decisions of a Deputy Tax Court Judge of February 12, 1997 dismissing the applicants' motions for extensions of time to bring two appeals and for an order directing the Tax Court of Canada to accept the applicants' notices of appeal as having been filed within time.
[2] The appeals in the Tax Court of Canada were from two determinations of the Minister of National Revenue. By those determinations it was ruled that a third person was employed by the applicants under a contract of service thereby rendering the applicants liable to deduct from the employee's wages and remit to the Minister employment insurance and Canada Pension Plan contributions pursuant to the Employment Insurance Act S.C. 1996, c. 23 and the Canada Pension Plan R.S.C. 1985, c.-8, as amended.
[3] Notices of the Minister's determinations dated June 19, 1997 were mailed to the applicants on that same day. The applicants filed the notices of appeal with the Tax Court of Canada on September 19, 1997. On December 4, 1997 after being served with motions to dismiss the appeals, the applicants filed the motions for extensions of time. The applicants filed evidence in this Court indicating that the notices of the Minister's determinations were not received until June 23, 1997.
[4] The right of appeal to the Tax Court of Canada is created by subsection 28(1) of the Canada Pension Plan1 and subsection 103(1) of the Employment Insurance Act2. Both subsections are similarly worded. By these subsections an appeal may be taken "within 90 days after the decision is communicated to the person" affected or within such extended period as the Tax Court of Canada "may allow on application made within those 90 days". Subsection 28(1.1) of the Canada Pension Plan and subsection 103(2) of the Employment Insurance Act go on to provide that the "determination of the time at which a decision ... is communicated ... 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"3.
[5] The relevant provisions of the Tax Court of Canada Rules are found in Rule 5(1) and (2), which read:
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5. (1) An appeal by an appellant from a determination by, or a decision on an appeal to, the Minister shall be instituted within 90 days after the determination or decision is communicated to the appellant, or within such longer time as the Court may allow on application made to it within those 90 days. |
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(2) Where a determination 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 determination or decision. |
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[6] The applicants limited their argument at the hearing to the assertion that the Deputy Tax Court Judge erred in not treating the notices of appeal as having been sent to the Tax Court of Canada within the 90 days statutory period. The basis of this argument is that while Rule 5(2) provides that where notice of the determination is communicated by mail the date of communication is the date of mailing and that this date is the date specified on the determination, Rules 3 and 27 of the Tax Court of Canada Rules confer a measure of discretion such as to have allowed the Deputy Tax Court Judge to treat the date of receipt of the notices as the date of communication.
[7] In our view, this argument is without merit. Subsection 28(2) of the Canada Pension Plan and subsection 103(1.1) of the Employment Insurance Act mandates the Tax Court of Canada pursuant to paragraph 20(1.1)(h.1) of the Tax Court of Canada Act to prescribe the time when a determination of the Minister under either statute is communicated to the person affected. The rule-making mandate of that Court is thus confined to providing for the time when that event occurs. It is apparent that Rule 5(2) was adopted in discharge of that mandate and, accordingly, that the other Tax Court of Canada Rules relied upon by the applicants are irrelevant. The jurisprudence of this Court is consistent with this view.4
[8] In the circumstances it is not necessary to deal with the respondent's contention that proof of receipt of the Minister's notices on June 23, 1997 is not properly before this Court on the ground that no such proof was before the Deputy Tax Court Judge.
[9] The section 28 applications will be dismissed with costs.
"A.J. Stone"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-89-98 and A-90-98
| STYLE OF CAUSE: TOURAN BAZLI AND AZIZOLLAH AZADGAZNI O/A COMPUTER MONITOR SERVICE, A PARTNERSHIP |
- and -
DATE OF HEARING: TUESDAY, JANUARY 12, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: STONE J.A.
Delivered at Toronto, Ontario
on Tuesday, January 12, 1999
APPEARANCES: Mr. Osborne G. Barnwell
Ms. Marilyn Vardy
For the Respondent
| SOLICITORS OF RECORD: Ferguson, Barnwell |
Barristers & Solicitors
National Building
515 Consumers Road, Ste. 310
North York, Ontario
M5Z 2Z8
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
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TOURAN BAZLI AND AZIZOLLAH AZADGAZNI |
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O/A COMPUTER MONITOR SERVICE, |
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__________________
1 Subsection 28(1) reads:
28. (1) An employee or employer affected by a determination by or a decision on an appeal to the Minister under section 27, or the representative of either of them, may, within ninety days after the determination or decision is communicated to that employee or employer, or within such longer time as the Tax Court of Canada on application made to it within those ninety days may alow, appeal from the determination or decision to that Court by sending a notice of appeal in prescribed form by registered mail to the Registry of that Court.
2 Subsection 103(1) reads:
103. (1) The Commission or a person affected by a decision on an appeal to the Minister under section 91 or 92 may appeal from the decision to the Tax Court of Canada in the prescribed manner within 90 days after the decision is communicated to the person, or within such longer time as the Court may allow on application made to it within those 90 days.
3 Paragraph 20(1.1)(h .1) reads:
(1.1) Without limiting the generality of the foregoing, the rules committee may make rules ...
(h.1) prescribing, for the purposes of subsection 28(1) of the Canada Pension Plan or subsection 103(1) of the Employment Insurance Act, when a determination or a decision on an appeal to the Minister of National Revenue under section 27 of the Canada Pension Plan or section 93 of the Employment Insurance Act, as the case may be, is communicated to a person;
4 See Canada v. Blais (1985), 64 N.R. 378 (F.C.A.); Pervais v. Canada (1996), 192 N.R. 267 (F.C.A.); Lamarre v. Canada (Minister of National Revenue), [1998] F.C.J. No. 831; Morin v. Canada (Minister of National Revenue), [1998] F.C.J. No. 762; Attorney General of Canada v. Poulin, May 29, 1998, Court File No. A-809-98 (unreported)
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