Date: 20091102
Docket: A-530-07
Citation: 2009 FCA 318
Coram: NOËL
J.A.
NADON
J.A.
TRUDEL
J.A.
BETWEEN:
FAITH ASSEMBLIES MISSION
INTERNATIONAL
Applicant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
NADON J.A.
[1]
Before me
are two motions. The first is made by the respondent and it seeks an Order
quashing the judicial review application filed by the applicant on November 22,
2007. The second motion is brought by the applicant and it seeks an Order
extending the time to appeal the Minister of National Revenue’s (the
“Minister”) Notice of Confirmation to revoke its charitable registration. These
Reasons will dispose of both motions.
[2]
A brief discussion
of the relevant facts is necessary to place these motions into proper context.
[3]
The
applicant is a registered charity. On October 3, 2007, it received from the
Minister a Notice of Intention to Revoke its charitable registration. After
filing a Notice of Objection thereto, the applicant filed a judicial review
application (the “application”) seeking “a stay of execution of the revocation
pending hearing and disposition of the objection process and the appeal process.”
The hearing of the applicant’s application is scheduled for Toronto on November 9, 2009, at 2:00
pm.
[4]
However,
following the filing of the applicant’s application, the Minister issued on
August 7, 2009, pursuant to subsection 165(3) of the Income Tax Act (the
“Act”), a Notice of Confirmation of his intent to revoke the applicant’s
charitable registration. The applicant has not appealed the Minister’s Notice
of Confirmation and the delay to do so has expired.
[5]
As a
result of the issuance of the Minister’s Notice of Confirmation, there can be
no doubt that the applicant’s application is now moot. Consequently, I see no
basis not to allow the respondent’s motion. The application shall therefore be
dismissed.
[6]
I should
point out that the applicant has not responded to the respondent’s motion to
quash its application. However, it has, by separate motion, sought an Order
extending the time to appeal the Minister’s Notice of Confirmation. For the
reasons that follow, the applicant’s motion will be dismissed.
[7]
The
applicant, in seeking an Order extending the time to appeal, has filed the affidavit
of Elizabeth Magner, an employee in the office of the applicant’s solicitors,
sworn October 8, 2009. In her affidavit, Ms. Magner states that she has been
advised by Mr. David Martin, counsel for the applicant, that he has been unable
to contact his client since late July, adding that he was only able to speak to
his client “last week”, i.e. during the first week of October 2009. Ms. Magner
further states that Pastor Oliogu, who has been giving the applicant’s
instructions to Mr. Martin, left Canada
in July and could not be reached by Mr. Martin until very recently. It appears
that Pastor Oliogu was expected back in Toronto on October 9, 2009, and that he
has now instructed Mr. Martin, inter alia, “to seek to re-open the
appeal for the Notice of Confirmation to October 16, to allow participation of
Pastor Oliogu in the process; …”
[8]
In Pharmascience
Inc. v. Minister of Health, 2003 FCA 333, my colleague, Sharlow J.A.,
indicated that the factors to be considered in determining whether or not an
extension of time to commence an appeal should be extended were as follows:
[6] In
deciding whether or not to grant an extension of time to commence an appeal,
the basic test is whether the interests of justice favour granting the
extension. The factors to be considered are conveniently summarized in Karon
Resources Inc. v. Canada (1993), 71 F.T.R. 232, [1994] 1 C.T.C. 307
(F.C.T.D.); (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. The weight to be given to each of these factors
will vary with the circumstances.
[9]
As Madam
Justice Sharlow indicates at the end of the above passage, the weight that is
to be given to each factor will depend on the particular circumstances of the
case.
[10]
In the
present matter, no evidence has been filed nor any submission made to satisfy
me that the applicant has an arguable case on appeal. Second, there is also
nothing in the record to show that the applicant had a continuing intention to
appeal during the appeal period. According to Ms. Magner’s affidavit, Pastor
Oliogu left Canada in July and could not be
reached by Mr. Martin until very recently. It appears that after his departure
from Canada in July, Pastor Oliogu made no attempt whatsoever during the months
of July, August and September, to keep in contact with Mr. Martin in respect of
the ongoing litigation with the Minister regarding the registration of the
applicant’s charity. It also appears that Pastor Oliogu left no telephone or
address at which he could be contacted by Mr. Martin. Ms. Magner further
indicates that Mr. Martin was therefore not in a position to file an appeal
with regard to the Notice of Confirmation because he had no instructions from his
client to that effect.
[11]
Considering
that the applicant filed its Notice of Objection on December 26, 2007, that
when Pastor Oliogu left for Nigeria in July of 2009, the Notice of Objection
had been outstanding for almost eighteen months and that Pastor Oliogu ought to
have known that a decision on the objection might be forthcoming at any time
and thus, in the event of an unfavourable ruling on the objection, that the
Minister would be confirming his intention to revoke the applicant’s
registration, it is somewhat surprising that Pastor Oliogu would not have left
instructions with Mr. Martin or, at the very least, would not have taken steps
to remain in contact with his attorney.
[12]
In my
respectful view, Pastor Oliogu’s conduct does not denote a continuing intention
to appeal, as required by the third factor set out by Madame Justice Sharlow in
Pharmascience, supra. With respect to the second factor, I have not been
persuaded that there are special circumstances which would justify the delay in
commencing the appeal. It is true that Mr. Martin was unable to obtain
instructions to appeal the Minister’s Notice of Confirmation, but his inability
results from Pastor Oliogu’s lack of diligence with respect to the applicant’s
litigation with the Minister.
[13]
Although
the delay has not been excessive and there is no evidence that the respondent
would be prejudiced by an extension of time, it is my view that in the
particular circumstances of the case, the factors which must be considered
dictate that the time to appeal the Minister’s Notice of Confirmation should
not be extended.
[14]
Accordingly,
the motion for an extension of time shall be dismissed.
“M.
Nadon”
“I
agree.
Marc
Noël J.A.”
“I
agree.
Johanne
Trudel J.A.”
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