Date: 20111020
Docket:
11-A-23
Citation: 2011 FCA 292
Present: SHARLOW
J.A.
BETWEEN:
SATPAL KAUR
Applicant
and
HER MAJESTY
THE QUEEN
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1]
Ms.
Satpal Kaur has filed a notice of motion to seek an extension of time to
commence an appeal of an order of the Tax Court of Canada dated September 2,
2011. The order sought to be appealed grants the motion of the Crown that Ms.
Kaur’s appeal under the Excise Tax Act, R.S.C. 1985, c. E-15, of an
assessment of goods and services tax (GST) be heard under the “general
procedure” rules rather than the “informal procedure” as Ms. Kaur had elected
in her notice of appeal. The change of procedure means, among other things,
that the parties will be obliged to submit to pre-trial discoveries, and may be
subject to an award of costs in the Tax Court. The Crown opposes the motion to
extend the time.
[2]
Generally,
the factors to be considered in determining whether to extend the time for
appealing an order are (1) whether there is an arguable case on appeal, (2)
whether there are special circumstances that justify the delay in commencing the
appeal, (3) whether there was a continuing intention to appeal, (4) whether the
delay has been excessive, and (5) whether the respondent will be prejudiced if
the extension of time is granted: Karon Resources Inc. v. Canada (1993), 71 F.T.R. 232,
[1994] 1 C.T.C. 307 (F.C.T.D.), cited in Pharmascience Inc. v. Minister of
Health, 2003 FCA 333. The weight to be given to these factors will vary
with the circumstances.
[3]
The
order sought to be appealed is interlocutory. By the combined operation of
paragraphs 27(1.1)(c) and 27(2)(a) of the Federal Courts Act,
R.S.C. 1985, c. F-7, the notice of appeal should have been filed within 10 days
after the pronouncement of the judgment. An order of the Tax Court is “pronounced”
on the date on which the signed judgment is recorded by the Tax Court registry.
[4]
In
this case, the order was issued without an oral hearing, on the basis of
documents filed by the parties. It was signed on Friday, September 2, 2011. The
record does not disclose when that order was deposited in the registry and
entered. In the absence of evidence, I will assume (consistently with Canada
Trustco Mortgage Company v. Her Majesty the Queen, 2008 FCA 382, at
paragraph 8), that the order was entered on the day it was signed. On that
basis, the notice of appeal should have been filed no later than Monday,
September 12, 2011.
[5]
The
Crown has suggested that the certification stamp on the copy of the order sent
to Ms. Kaur indicates that the order was deposited with the registry and entered
on September 6, 2011, and that the notice of appeal should have been filed by
September 16, 2011. However, that is not what the stamp itself says. It says
only that the certification of the order occurred on September 6, 2011.
[6]
The
Crown does not argue that there was no continuing intention to appeal, that the
delay has been excessive, or that the Crown will be prejudiced if the extension
is granted. However, the Crown submits that there is no justification for the
delay, and that the appeal has no merit.
[7]
According
to the affidavit filed by Ms. Kaur in support of her motion, the registry
mailed the order to her on September 6, 2011. It reached her mailbox on
September 7, 2011, but she did not actually receive the order until September
13, 2011 because it was only then that Ms. Kaur’s staff picked up the envelope
and signed for it. By that time, the appeal period had already expired and
there was no time to prepare a notice of appeal. Ms. Kaur argues that these
circumstances provide a reasonable justification for the delay. However, I am
inclined to accept the submission of the Crown that Ms. Kaur has not explained
the one week delay in picking up her mail.
[8]
As
to the merits of the appeal, Ms. Kaur has submitted that it has merit, but the
material she has filed does not explain why she takes that position. The
proposed grounds of appeal are not set out in her motion record. The Crown
argues that the appeal has no merit, because the Tax Court had no discretion to
refuse its motion to have Ms. Kaur’s appeal be governed by the general
procedure rules. This submission assumes that Ms. Kaur intends to appeal the
Tax Court order on the basis of a misinterpretation of subsection 18.3002(1) or
a wrongful exercise of discretion. As Ms. Kaur has not stated the grounds upon
which she wishes to appeal, and the material before me contains nothing that
suggests any other ground of appeal, I make the same assumption.
[9]
The
order sought to be appealed granted the Crown’s motion under subsection
18.3002(1) of the Tax Court of Canada Act, R.S.C. 1985, c. T-2,
requiring Ms. Kaur’s appeal to be governed by the general procedure rules,
rather than the informal procedure rules as Ms. Kaur had elected under section 18.3001.
Those provisions read as follows:
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18.3001 Subject to section 18.3002,
this section and sections 18.3003 to 18.301 apply, with any modifications
that the circumstances require, to an appeal under
(a)
the Excise Act, 2001 if
(i) a person has so elected in the
notice of appeal for an appeal under that Act or at such later time as may be
provided in the rules of Court, and
(ii)
the amount in dispute does not exceed $25,000; and
(b)
Part V.1 of the Customs Act or Part IX of the Excise Tax Act if
a person has so elected in the notice of appeal for an appeal under that Act
or at such later time as may be provided in the rules of Court.
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18.3001. Sous réserve de l'article
18.3002, le présent article et les articles 18.3003 à 18.301 s'appliquent,
avec les adaptations nécessaires, aux appels interjetés en vertu :
a) de la Loi de 2001 sur
l'accise si, à la fois :
(i)
une personne en fait la demande dans son avis d'appel ou à toute date
ultérieure prévue par les règles de la Cour,
(ii)
le montant en litige n'excède pas 25 000 $ ;
b) de la partie V.1 de la Loi
sur les douanes ou de la partie IX de la Loi sur la taxe d'accise,
si une personne en fait la demande dans son avis d'appel ou à toute date
ultérieure prévue par les règles de la Cour.
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18.3002 (1) Where the Attorney General
of Canada so requests, the Court shall order that sections 17.1, 17.2 and
17.4 to 17.8 apply in respect
of an appeal in respect of which
sections 18.3003 and 18.3007 to 18.302 would otherwise apply.
|
18.3002 (1) Sur demande du procureur
général du Canada, la Cour doit ordonner l’application des articles 17.1,
17.2 et 17.4 à 17.8 à l’appel auquel les
articles 18.3003 et 18.3007 à 18.302
s’appliqueraient par ailleurs.
|
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(2)
A request under subsection (1) shall not be made after sixty days after the
day the Registry of the Court transmits to the Minister of National Revenue
the notice of appeal unless
(a)
the Court is satisfied that the Attorney General of Canada became aware of
information that justifies the making of the request after the sixty days had
elapsed or that the request is otherwise reasonable in the circumstances; or
(b)
the person who has brought the appeal consents to the making of the request
after the sixty days have elapsed.
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(2)
La demande doit être présentée dans les soixante jours suivant la
transmission de l’avis d’appel par le greffe de la Cour au ministre du Revenu
national ou après l’expiration de ce délai dans les cas suivants :
a) la Cour est convaincue que
le procureur général du Canada a pris connaissance de renseignements tels
qu’il est justifié de présenter la demande après l’expiration de ce délai, ou
que la demande est par ailleurs raisonnable dans les circonstances;
b) la personne qui interjette
appel y consent.
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(In section 18.3001, an appeal to which “this section and
sections 18.3003 to 18.301 apply” means an appeal governed by the Tax Court’s
informal procedure. In subsection 18.3002(1), an appeal to which “sections
17.1, 17.2 and 17.4 to 17.8 apply” means an appeal governed by the Tax Court’s
general procedure.)
[10]
As I
read subsection 18.3002(1), the Tax Court had no discretion to refuse to grant
the Crown’s motion because it was made within 6o days after the day the
registry transmitted the notice of appeal to the Minister. According to the
affidavit filed by the Crown to oppose Ms. Kaur’s motion for an extension of
time, the registry transmitted Ms. Kaur’s notice of appeal to the Minister on
May 24, 2011, and the Crown filed its subsection 18.3002(1) motion on July 14,
2011.
[11]
This
interpretation of subsection 18.3002(1) is supported by the word “shall” in
that provision, and also by subsection 18.3002(2) which requires the Crown to
justify a subsection 18.3002(1) motion only if it is made outside the stated 60
day time limit. The absence of any requirement for a justification if the
motion is made within the 60 day time limit indicates that the Tax Court was
not intended to have the discretion to dismiss a motion made within that time. I
note that this interpretation of subsection 18.3002(1) has been accepted by the
Tax Court of Canada: see Oakville Motor Sales & Leasing Inc. v. Canada,
[1996] G.S.T.C. 80 (T.C.C.); Moriyama v. Canada, 2001 D.T.C. 774
(T.C.C.); and Automoney Motor Corp. v. Canada, 2011 TCC 4. I was able to
find no cases adopting any other interpretation.
[12]
I
agree with the Crown that Ms. Kaur’s appeal of the interlocutory order cannot
succeed, and that Ms. Kaur has not justified the delay. In the circumstances of
this case, those are sufficient grounds for dismissing Ms. Kaur’s motion for an
extension of time to appeal. Accordingly, the motion will be dismissed with
costs.
“K. Sharlow”
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