Date:
20120820
Docket: 12-A-34
Citation: 2012 FCA 221
Present: MAINVILLE
J.A.
BETWEEN:
PETER LEO-MENSAH
Applicant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
MAINVILLE J.A.
[1]
The
applicant appealed to the Tax Court of Canada reassessments made under the Income
Tax Act, R.S.C. 1985 (5th Supp.), c.1. for his 2004 and 2005
taxation years. These appeals were pursued under the informal procedure set out
in sections 18 to 18.28 of the Tax Court of Canada Act, R.S.C. 1985, c.
T-2.
[2]
Though
called to a hearing of the Tax Court of Canada held on November 1, 2011, the
applicant failed to attend. Consequently, on November 15, 2011, Justice T.E.
Margeson issued an order pursuant to subsection 18.21(1) of the Tax Court of
Canada Act dismissing the appeals.
[3]
While
the applicant contacted the counsel for the respondent on November 2, 2011,
stating that he had been unable to attend the hearing because he was ill, he
did not apply to the Tax Court of Canada, under subsections 18.21(2) and (3) of
the Tax Court of Canada Act, to have the order of dismissal set aside
and the appeals set down for a hearing.
[4]
On
May 18, 2012, the Canada Revenue Agency (“CRA”) received a notice of objection
form bearing the applicant’s name and address, and which set out the following
cryptic request: “Appealing on disputed amount. Reinstated 2004 and 2005 dated
on 25 April 2012 mailed date May 2, 2012” (sic). The CRA forwarded this
document to the registry of the Federal Court of Appeal. A registry officer
wrote to the applicant on June 5, 2012, providing him with general explanations
concerning the procedure to appeal a decision of the Tax Court of Canada to
this Court.
[5]
On
July 23, 2012, the applicant filed this motion in this Court. The motion does
not set out the relief sought, nor does it contain any details. The respondent,
however, filed a detailed motion record. I have reviewed the motion material
provided to me by both the applicant and the respondent, and I take it from
this material that the applicant is seeking an extension of time to either (a)
file an application to set aside the dismissal of his appeals in the Tax Court
of Canada, or (b) appeal these dismissals to this Court.
[6]
In
either case, the motion should be dismissed.
[7]
An
application under subsections 18.21 (2) and (3) of the Tax Court of Canada
Act must be made to the Tax Court of Canada as soon as the circumstances
allow, and in any event, not later than 180 days after the challenged order was
mailed to the appellant: paragraph 18.21(3)(b) of the Tax Court of
Canada Act. This Court does not have the authority to grant such relief,
and even if it did, the time to initiate such an application has now expired.
[8]
An
appeal to this Court from a final judgment of the Tax Court of Canada must be
brought within 30 days of the pronouncement appealed from, or within any
further time that a judge of this Court may allow: paragraph 27(2)(b) of
the Federal Courts Act, R.S.C. 1985, c. F-7. The factors considered to
grant such an extension of time are: (a) a continuing intention to appeal; (b)
an arguable case on appeal; (c) the absence of prejudice on the
respondent as a result of the delay; and (d) a reasonable explanation for the
delay: Canada Trustco Mortgage Co. v. Canada, 2008 FCA 382, 382 N.R.
388, referring approvingly to Grewal v. M.E.I., [1985] 2 F.C. 263, 63
N.R. 106 (C.A.).
[9]
In
this case, the applicant has provided no explanation justifying the eight month
delay between the date his appeals were dismissed by the Tax Court of Canada
and the filing of this motion for an extension of time. Litigants must
demonstrate diligence in the pursuit of their appeals. This is particular so
where, such as in this case, the applicant could have initiated an application
pursuant to subsections 18.21 (2) and (3) of the Tax Court of Canada Act,
but failed to do so in a timely manner. Without a cogent explanation justifying
why this Court, at this late date, should now entertain an appeal of an order
made under subsection 18.21(1) of the Tax Court of Canada Act, I must
dismiss the motion.
[10]
The
motion shall consequently be dismissed.
"Robert
M. Mainville"
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