Date: 20081022
Docket: 08-A-52
Citation: 2008 FCA 318
Present: PELLETIER
J.A.
BETWEEN:
KEVIN McKINNEY
Applicant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
PELLETIER J.A.
[1]
This is a
motion to extend the time for bringing an appeal from a decision of the Tax
Court of Canada, as well as a motion to consolidate the hearing of the pending
appeal of an interlocutory order made in the course of the same proceedings
before the Tax Court.
[2]
The
affidavit of Timothy Clarke, one of the applicant's counsel establishes that
the final judgment of the Tax Court in this matter was mailed to him on May 23,
2008, and that the 30 day period for appealing the judgment expired on June 23,
2008. It appears that the applicant had a family crisis on June 20, 2008 as a
result of which counsel was not able to contact him to obtain instructions
until June 24, 2008.
[3]
The
judgment under appeal is one in which the applicant succeeded in part before
the Tax Court in that, even though his appeal was dismissed, the Tax Court
returned the Assessment to the Minister for reconsideration and reassessment on
the basis that the applicant should be credited with a further sum of $43,
503.77.
[4]
While the
affidavit of Mr. Clarke indicates that a copy of the judgment under appeal is
attached as Exhibit B to his affidavit, Exhibit B is a copy of the
interlocutory order which is already under appeal. As a result, the Court has
no idea of the nature of the judgment under appeal and the grounds for the
appeal, and thus is unable to form any idea as to the potential merit of the
appeal.
[5]
The
factors to be considered in deciding whether to extend the period for filing a
notice of appeal are set out in Pharmascience Inc. v.
Canada (Minister of Health), 2003 FCA 333, [2004] 2
F.C.R. 349, at paragraph 6, where the following appears:
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.
[6]
In this case, the applicant has not established that there
is an arguable case on appeal. There are special circumstances that partially
justify the delay in commencing the appeal. I say "partially justify"
because the unfortunate event which disrupted the applicant's life occurred
late, very late, in the appeal period. Those who leave these decisions to the
last minute run the risk of unforeseen events interfering with their plans. That
said, I am prepared to credit the applicant with this factor.
[7]
In his affidavit, Mr. Clarke deposes that the applicant had
a continuing intention to appeal, "but [that he] had been considering the
relative cost and benefits of appealing the judgment before instructing
counsel." It is obvious from this that the applicant did not, in fact,
have a continuing intention to appeal. He was in the process of considering his
options, a not unreasonable position since the judgment appealed from did
credit him with $43,507.77. Unfortunately, his consideration of this question
was overtaken by other events. The applicant has been prompt in seeking relief
from the failure to file his appeal within the appeal period. Finally, the
Crown consents to the granting of an extension of time, which suggests that it
does not claim that it would be prejudiced by the granting of an extension of
time.
[8]
These
factors are not to be applied mechanically or arithmetically. The fact that the
applicant satisfies three of the five factors is not determinative, just as the
consent of the Crown is not determinative. The Court is being asked to
authorize the late filing of an appeal when it has no idea of the nature or the
merits of the proposed appeal. This omission is very difficult to overcome,
particularly when the taxpayer himself is undecided whether to pursue his
appeal. In the end result, I conclude that the time for filing a notice of
appeal should not be extended. In the circumstances, I do not have to deal with
the request that the appeals be consolidated.
"J.D.
Denis Pelletier"
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