Lee v. Canada (National Revenue), 2013 FCA 67

Date: 20130306

Docket: A-550-12

Citation: 2013 FCA 67

CORAM:       SHARLOW J.A.      

                        STRATAS J.A.

                        WEBB J.A.

BETWEEN:

BRADMAN LEE

Appellant

and

THE MINISTER OF NATIONAL REVENUE

Respondent

Dealt with in writing without appearance of parties.

Judgment delivered at Ottawa, Ontario, on March 6, 2012.

.

REASONS FOR JUDGMENT BY:                                                                      SHARLOW J.A.

CONCURRED IN BY:                                                                                            STRATAS J.A.

                                                                                                                                         WEBB J.A.

Date: 20130306

Docket: A-550-12

Citation: 2013 FCA 67

CORAM:       SHARLOW J.A.      

                        STRATAS J.A.

                         WEBB J.A.

BETWEEN:

BRADMAN LEE

Appellant

and

THE MINISTER OF NATIONAL REVENUE

Respondent

REASONS FOR JUDGMENT

SHARLOW J.A.

[1]               The respondent (the Crown) has moved to quash this appeal on the basis that it was filed outside the statutory time limit without leave. The appellant Bradman Lee has not responded to the motion although he was served with the motion record.

[2]               The history of this matter began in 2005 when notices of assessment were issued to Mr. Lee pursuant to the Excise Tax Act, R.S.C. 1985, c. E-15. The assessment was for goods and services tax or harmonized sales tax (GST/HST) and penalties under section 285 of the Excise Tax Act. Mr. Lee objected to the assessments without success. He then appealed to the Tax Court of Canada – the “first appeal”.

[3]               The first appeal was heard by Justice Woods. She allowed the appeal in part and referred the matter back to the Minister for reassessment on the basis that certain input tax credits should be allowed and the section 285 penalties should be deleted (2010 TCC 400). Mr. Lee appealed the judgment to this Court (A-299-10). That appeal was dismissed for delay when Mr. Lee failed to respond to a notice of status review.

[4]               By notice of reassessment dated June 7, 2011, Mr. Lee was reassessed to give effect to the judgment of Justice Woods. Mr. Lee objected to those reassessments. The reassessments were confirmed on the basis that the reassessments correctly reflected the changes ordered by Justice Woods in the first appeal. Mr. Lee then appealed to the Tax Court of Canada – the “second appeal”.

[5]               The Crown filed a motion in the Tax Court of Canada to quash the second appeal on the ground that Mr. Lee was attempting to relitigate the issues on which he had been unsuccessful in his first appeal. Justice Woods heard the Crown’s motion and, in a judgment dated September 21, 2012, dismissed the second appeal (2012 TCC 335). Mr. Lee did not appeal that judgment.

[6]               On October 2, 2012, counsel for the Crown sent a letter to the Tax Court of Canada stating that the September 21, 2012 reasons and judgment were in error because they referred to only 3 of

the 4 reporting periods in issue in the second appeal. Mr. Lee was notified of the Crown’s communication. In a letter to the Tax Court of Canada, Mr. Lee indicated that he did not agree that there was any error in the September 21, 2012 reasons and judgment. However, Justice Woods agreed with the Crown and issued an amended judgment and reasons on October 25, 2012.

[7]               Pursuant to 27(2) of the Federal Courts Act, R.S.C. 1985, c. F-7, Mr. Lee had the right to appeal the October 25, 2012 judgment to this Court within 30 days or such further time permitted by a judge of this Court. However, he did not file a notice of appeal within that 30 day period and he did not seek an extension of time for doing so. Instead, Mr. Lee filed a notice of appeal on December 18, 2012 indicating that he was appealing a judgment of the Tax Court of Canada dated November 22, 2012, citing the file number for the second appeal. However, no judgment of the Tax Court of Canada was made in that file after October 25, 2012.

[8]               The publicly available docket for the second appeal refers to a “remailing” of the judgment and reasons on November 7, 2012 and then a further “remailing” on November 22, 2012. That may indicate that Mr. Lee did not actually receive a copy of the October 25, 2012 judgment until sometime in late November of 2012. However, to appeal a judgment to this Court, the 30 day statutory appeal period begins on the date on which judgment is pronounced, not the date on which judgment is received. A judgment of the Tax Court of Canada is “pronounced” on the day it is signed.

[9]               It follows that this appeal was filed late without leave. Since Mr. Lee has offered no explanation and has not sought an extension of time, I would grant the Crown’s motion and quash this appeal with costs.

“K. Sharlow”

“I agree

          David Stratas J.A.”

“I agree

          Wyman W. Webb J.A.”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                             A-550-12

STYLE OF CAUSE:                                                            BRADMAN LEE v. THE MINISTER OF NATIONAL REVENUE

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR JUDGMENT BY:                                   SHARLOW J.A.

CONCURRED IN BY:                                                        STRATAS, WEBB JJ.A.

DATED:                                                                                MARCH 6, 2013

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: