Date: 20130206
Docket: A-478-12
Citation: 2013 FCA 22
Present: MAINVILLE
J.A.
BETWEEN:
ANDRÉ RODRIGUE
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
MAINVILLE J.A.
[1]
This
is a motion by the respondent to dismiss the appeal on the ground that the
impugned order of the Tax Court of Canada is an interlocutory judgment and that
the notice of appeal was filed after the 10-day time limit provided at
paragraph 27(2)(a) of the Federal Courts Act, R.S.C., 1985,
c. F-7.
[2]
The
appellant is challenging this motion on the ground that the order of the Tax
Court of Canada is either a judgment on a question of law determined before
trial or a final judgment that may be appealed from the filing of a notice of
appeal within 30 days after the pronouncement of the judgement under
paragraph 27(2)(b) of the Federal Courts Act. In the
alternative, the appellant is seeking an extension of time to file his notice
of appeal should the Court be of the opinion that the impugned order is an
interlocutory judgment.
[3]
Two
other appeals, namely, dockets A-479-12, Animalerie Dyno Inc. c. Sa Majesté
la Reine, and A-480-12, Micheline Rodrigue c. Sa Majesté la Reine,
are the subject of two similar motions from the respondent: these, too, have
been challenged by the appellants in question, on similar grounds to those
raised in the present case. Since the factual background and the legal
arguments pertaining to the three motions regarding these related files,
A-478-12, A-479-12 and A-480-12, are identical, the present reasons for order,
for docket A-478-12, will also dispose of the respondent’s motions
regarding appeal dockets A-479-12 and A-480-12.
BACKGROUND
[4]
On
June 21, 2012, the appellant filed a notice of appeal with the Tax Court
of Canada regarding tax assessments for the taxation years 1995 to 1998. On
September 10, 2012, the respondent served a reply to this notice of
appeal. Since the reply was late, on September 21, 2012, the respondent
filed and served a motion with the Tax Court of Canada seeking an extension of
time to file a reply to the notice of appeal.
[5]
The
appellant opposed the motion by filing and serving written representations with
the Tax Court of Canada on October 11, 2012. In his written representations,
the appellant asked the Tax Court of Canada (a) not to dispose of the application
upon consideration of written representations and without appearance by the
parties, but rather to order that a hearing be held to dispose of the motion,
and (b) to order that the respondent’s representative be cross-examined on his
affidavit in support of the respondent’s motion for an extension of time prior
to the desired hearing of the motion.
[6]
In reply
to these pleadings, counsel for the respondent wrote to counsel for the
appellant on October 15, 2012, to inform him of the following:
[translation]
In your [written representations], you request that
these motions be the subject of a hearing, during which, among other things,
you wish to cross-examine us on affidavit. We will be available for
cross-examination on the date of the hearing to be scheduled by the Court
unless you wish to send us written examination questions in the meantime.
(Reply Record, Tab 5)
[7]
On
October 19, 2012, after reviewing the respondent’s motion record and the
appellant’s written representations, Justice Favreau of the Tax Court of
Canada issued an order allowing the respondent’s motion for an extension of
time to file a reply to the notice of appeal.
[8]
The
appellant therefore wrote to Justice Favreau on October 22, 2012, to
explain the situation to him and to ask him to confirm the examination of the deponent
and the opportunity to make representations following the filing of the
examination [translation] “before
a decision regarding the respondent’s motions for an extension of time to file
a reply to the notice of appeal is made”: Reply Record, Tab 8). The
respondent replied on October 29, 2012, stating that, obviously,
Justice Favreau had recognized implicitly that the examination on
affidavit sought by the appellant was neither necessary nor warranted, and that
the appellant’s only remedy was an appeal before this Court.
[9]
On
November 30, 2012, Chief Justice Rip of the Tax Court of Canada informed
the parties that the motion had been decided and that the appellant could file
a notice of appeal with this Court.
COMPUTING THE TIME TO APPEAL
[10]
Subsection 27(1.1)
of the Federal Courts Act deals with appeals from Tax Court of Canada
judgments issued under that court’s general procedure.
|
(1.1) An appeal lies to the Federal Court
of Appeal from
(a) a final judgment of the Tax
Court of Canada, other than one in respect of which section 18, 18.29, 18.3
or 18.3001 of the Tax Court of Canada Act applies;
(b) a judgment of the Tax Court
of Canada, other than one in respect of which section 18, 18.29, 18.3 or
18.3001 of the Tax Court of Canada Act applies, on a question of
law determined before trial; or
(c) an interlocutory judgment or
order of the Tax Court of Canada, other than one in respect of which section
18, 18.29, 18.3 or 18.3001 of the Tax Court of Canada Act
applies.
|
(1.1) Sauf s’il s’agit d’une décision
portant sur un appel visé aux articles 18, 18.29, 18.3 ou 18.3001 de la Loi
sur la Cour canadienne de l’impôt, il peut être interjeté appel,
devant la Cour d’appel fédérale, des décisions suivantes de la Cour
canadienne de l’impôt :
a) jugement
définitif;
b) jugement
sur une question de droit rendu avant l’instruction;
c) jugement
ou ordonnance interlocutoire.
|
[11]
Subsection 27(2)
of the Federal Courts Act provides the time limits within which such
appeals must be brought, distinguishing here between (a) interlocutory
judgments, notice of appeal from which must be filed within 10 days after the
pronouncement of the judgment at issue, and (b) other judgments, notice of
appeal from which must be filed within 30 days. In all cases, a judge of this
Court may extend the time limit:
|
(2) An appeal under this section shall be
brought by filing a notice of appeal in the Registry of the Federal Court of
Appeal
(a) in the case of an
interlocutory judgment, within 10 days after the pronouncement of the
judgment or within any further time that a judge of the Federal Court of
Appeal may fix or allow before or after the end of those 10 days; and
(b) in any other case, within 30
days, not including any days in July and August, after the pronouncement of
the judgment or determination appealed from or within any further time that a
judge of the Federal Court of Appeal may fix or allow before or after the end
of those 30 days.
|
(2) L’appel interjeté dans le cadre du
présent article est formé par le dépôt d’un avis au greffe de la Cour d’appel
fédérale, dans le délai imparti à compter du prononcé du jugement en cause ou
dans le délai supplémentaire qu’un juge de la Cour d’appel fédérale peut,
soit avant soit après l’expiration de celui-ci, accorder. Le délai imparti
est de :
a) dix
jours, dans le cas d’un jugement interlocutoire;
b) trente
jours, compte non tenu de juillet et août, dans le cas des autres jugements.
|
[12]
The
question, therefore, is whether an order of the Tax Court of Canada extending
the time for filing a reply to a notice of appeal from an income tax assessment
is an interlocutory judgment that may be appealed from within 10 days, or a
final judgment or a judgment on a question of law determined before trial that
may be appealed within 30 days.
[13]
The
appellant submits that (a) the right whether or not to file a late reply to a
notice of appeal and (b) observance of the audi alteram partem rule are
both questions of law. The appellant is of the view that Justice Favreau’s
order is a judgment on a question of law determined before trial and that it
may, therefore, be appealed from within 30 days after the pronouncement of the judgment
under paragraphs 27(1.1)(b) and 27(2)(b) of the Federal
Courts Act. The appellant adds that the effect of this order is such that it
is also a final judgment within the meaning of paragraph 27(1.1)(a)
of the Federal Courts Act.
[14]
I do
not agree with the appellant on these points.
[15]
Section 2
of the Federal Courts Act defines a “final judgment” as a decision that
determines any substantive right of at least one of the parties in controversy
in any judicial proceeding:
|
2. (1) In this Act,
...
“final
judgment” means any
judgment or other decision that determines in whole or in part any
substantive right of any of the parties in controversy in any judicial
proceeding;
|
2. (1) Les définitions
qui suivent s’appliquent à la présente loi.
[…]
« jugement définitif » Jugement ou autre décision qui statue au fond, en tout ou en
partie, sur un droit d’une ou plusieurs des parties à une instance.
|
[16]
This
Court has explained many times that this definition of “final judgment” does
not include the “right” to file a document in a proceeding after the time limit
for doing so has expired (Canada (Attorney General) v. Hennelly (1995),
99 F.T.R. 320 n, 185 N.R. 389) or the “right” to amend pleadings during
proceedings (Simpson Strong-Tie Co. v. Peak Innovations Inc., 2008 FCA
235), insomuch as the decision at issue does not determine any substantive
rights of any of the parties to the proceeding.
[17]
Moreover,
even though a judgment on a question of law determined before trial may be appealed
from within 30 days under paragraph 27(1.1)(b) of the Federal
Courts Act, that judgment must be one that has determined a substantive
right of any of the parties to the proceeding and not one that dealt with a
procedural issue or the conduct of the proceeding.
[18]
Even
though decisions dealing with procedural issues or the conduct of a proceeding
often deal with questions of law regarding the proceeding in question, they are
not judgments on a question of law determined before trial within the meaning
of paragraph 27(1.1)(b) of the Federal Courts Act, as long
as they are not concerned with the parties’ rights with respect to the merits
of the case.
[19]
I
recognize that it may sometimes be difficult to distinguish between a decision
regarding the merits of a case and a decision regarding a procedural issue or
the conduct of a proceeding. There is no reason, however, for getting lost in
the finer points of the law to dispose of this issue when it arises. A
pragmatic, functional approach is in order. The main issue to decide is whether
the impugned judgment or decision disposes of a substantive or a procedural
issue.
[20]
In
the case at bar, I have no hesitation in finding that Justice Favreau’s
order disposes of a procedural issue and not a substantive one. The substantive
issue in this case, namely, the accuracy of the appellant’s income tax assessments
for the years at issue, is not affected by the order.
[21]
Consequently,
the time provided for appealing the Tax Court of Canada order dated
October 19 is 10 days after the day the order was pronounced. The
appellant missed that deadline.
EXTENSION OF THE TIME TO APPEAL
[22]
Whether
or not to extend the time to appeal under subsection 27(2) of the Federal
Courts Act comes within the discretion of the judge hearing the motion. The
underlying consideration in exercising this discretion is whether it is fair and
reasonable to extend the time in the light of all the circumstances. For that
purpose, this Court has identified certain factors that may be considered,
including (a) whether there has been a continuing intention to appeal; (b)
whether the appellant has provided a reasonable explanation for the delay in
filing the notice to appeal; (c) whether another party has been prejudiced by
the delay; and (d) whether a serious issue is raised on appeal: Canada
Trustco Mortgage Co. v. Canada, 2008 FCA 382, 382 N.R. 388, at
para. 14; Leo-Mensah v. Canada, 2012 FCA 221, 434 N.R. 312, at
para. 8.
[23]
On
the face of the motion record and the reply record, it is clear that, in the
present case, it has been the appellant’s continuing intention to appeal. The
appellant’s explanation in justification of the delay in filing the notice of
appeal is reasonable: the appellant tried in vain to obtain an alternative
solution from the Tax Court of Canada to solve the issue.
[24]
Moreover,
it is not disputed that the respondent suffered no serious prejudice as a
result of the appellant’s delay in filing the notice of appeal.
[25]
It therefore
remains to be decided whether the appeal raises a serious issue. A Tax Court of
Canada judge’s decision whether or not to allow a motion for an extension of
time to file a reply to a notice of appeal is also discretionary. Only on rare
occasion will this Court interfere with such a discretionary decision. If it
was the only issue raised by the appellant in support of his appeal, I would
not hesitate to deny the extension of the time to appeal. However, in my
opinion, the appellant raises a more serious issue.
[26]
This
serious issue regards the interpretation and enforcement of
subsection 67(1) and sections 69 and 74 of the Tax Court of Canada
Rules (General Procedure), SOR/90-688a. They provide as follows:
|
67. (1) The notice of
motion together with the affidavits or other documentary material to be used
at the hearing of the motion shall be served on any person or party who will
be affected by the direction sought.
69. (1) A party filing a notice
of motion may, at the same time, or subsequently, file a written request that
the motion be disposed of upon consideration of written representations and
without appearance by the parties.
(2) A
copy of the request and of the written representations shall be served on all
parties served with the notice of motion.
(3) A
party served with a request shall within twenty days,
(a) file
and serve written representations in opposition to the motion, or
(b) file
and serve a written request for a hearing.
(4) When
all parties served with the request have replied to it or the time for doing
so has expired, the Court may,
(a) grand
judgment without a hearing,
(b) direct
a hearing, or
(c) direct
that written representations be filed.
|
67. (1) L’avis de requête
et les déclarations sous serment ou autres éléments de preuve documentaire
qui seront utilisés lors de l’audition de la requête sont signifiés aux
personnes ou aux parties sur lesquelles la directive demandée peut avoir une
incidence.
69. (1) La partie qui
dépose un avis de requête peut, au moment du dépôt ou par la suite, présenter
une demande écrite pour que la requête soit tranchée sur la base des
observations écrites et sans comparution des parties.
(2) Une
copie de la demande et des observations écrites doit être signifiée à toutes
les parties visées par l’avis de requête.
(3) Une
partie à qui la requête a été signifiée dispose de vingt jours pour
a) produire et signifier des observations écrites en
opposition à la requête;
b) déposer et signifier une demande écrite d’audience.
(4) Lorsque
toutes les parties à qui la requête a été signifiée ont donné leur réponse ou
que le délai est expiré, la Cour peut
a) accorder le jugement sans audience;
b) ordonner la tenue d’une audience;
c) ordonner le dépôt d’observations écrites.
|
|
74. A deponent whose affidavit
has been filed may be cross-examined on it by a party who is adverse in
interest on the motion, and the evidence adduced may be used at the hearing
of the motion.
|
74. Le déposant d’une
déclaration sous serment peut être contre-interrogé au sujet de la
déclaration sous serment par une partie opposée à la requête, et le
témoignage qui en découle peut être utilisé lors de l’audition de la requête.
|
[27]
The issue in this appeal
is, therefore, whether a Tax Court of Canada judge may, under section 69,
cited above, determine that the sought-after cross-examination of a deponent,
as provided for by section 74, cited above, is neither necessary nor
warranted for the purpose of disposing of a motion upon consideration of
written representations and without appearance of the parties. That is a serious
issue.
CONCLUSIONS
[28]
Even
though the Court may allow the respondent’s motion and also allow the appellant
to file a new notice of appeal within 10 days of the order, section 3
of the Federal Courts Rules, SOR/98-106, encourages this Court to secure
the just, most expeditious and least expensive determination of every
proceeding on its merits. In the light of these principles, it seems most just,
simple and expeditious, and least expensive, in the interest of the proper
administration of justice, to (a) dismiss the respondent’s motion; (b) allow
the motion for an extension of time to appeal the order of the Tax Court of
Canada; (c) order that the amended notice of appeal filed with the Registrar on
November 29, 2012, be accepted as an extended notice of appeal; and
(d) order that the time limits to perfect the appeal in accordance with
the Federal Courts Rules be established and computed as of the date of
the present order. In light of the circumstances and of section 105 of the
Federal Courts Rules, the appeals in dockets A-478-12, A-479-12 and
A-480-12 will be consolidated in accordance with the terms of the order issued
concurrently with these reasons. With costs in the cause.
“Robert M. Mainville”
Certified true
translation
François Brunet, Revisor
Email this Content