Pereira v. Canada, 2008 FCA 264

Date: 20080915

Dockets: A-16-08

A-17-08

Citation: 2008 FCA 264

CORAM:       NADON J.A.

                        SEXTON J.A.                       

                        PELLETIER J.A.

BETWEEN:

JOSE PEREIRA

Appellant

and

HER MAJESTY THE QUEEN

Respondent

Heard at Toronto, Ontario, on September 15, 2008.

Judgment delivered from the Bench at Toronto, Ontario, on September 15, 2008.

REASONS FOR JUDGMENT OF THE COURT BY:                                                NADON J.A.

Date: 20080915

Dockets: A-16-08

A-17-08

Citation: 2008 FCA 264

CORAM:       NADON J.A.

                        SEXTON J.A.                       

                        PELLETIER J.A.

BETWEEN:

JOSE PEREIRA

Appellant

and

HER MAJESTY THE QUEEN

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto, Ontario, on September 15, 2008)

NADON J.A.

[1]               Notwithstanding Mr. Klug’s forceful arguments, we have not been persuaded that Bowie J. erred in dismissing the appellant’s application for an extension of time to file a Notice of Objection to the assessment made by the Minister under section 227.1 of the Income Tax Act and subsection 323(4) of the Excise Tax Act for the liabilities of United Growth Inc., in his capacity of Director thereof, for income tax withholdings, GST, interests and penalties.

[2]               Bowie J. concluded as he did because, in his view, the appellant had neither filed a Notice of Objection within 90 days of the mailing of the assessment, as required by section165 of the Income Tax Act and subsection 301.1 of the Excise Tax Act, nor had he filed an application for an extension of time to do so within 1 year after the expiry of the 90-day period provided to file a Notice of Objection, as required by section 166.1 of the Income Tax Act and section 303 of the Excise Tax Act.

[3]               In our view, on the record before him, the conclusion reached by Bowie J. was unavoidable and, as a result, the appeals will be dismissed with costs.

[4]               In concluding, we wish to make it absolutely clear that, in our view, Haight v. Canada, [2000] 4 C.T.C. 2546 was wrongly decided and ought not to be followed.

“M. Nadon”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKETS:                                                                            A-16-08

                                                                                                A-17-08

(FILE NO. A-16-08, APPEAL FROM AN ORDER OF THE HONOURABE MR. JUSTICE BOWIE OF THE TAX COURT OF CANADA DATED JANUARY 8, 2008, FILE NO. 2007-3137 (IT) APP.

FILE NO. A-17-08, APPEAL FROM AN ORDER OF THE HONOURABLE MR. JUSTICE BOWIE OF THE TAX COURT OF CANADA DATED DECEMBER 10, 2008, FILE NO. 2007-3139 (GST) APP.)

STYLE OF CAUSE:                          JOSE PEREIRA v. HER MAJESTY THE QUEEN

PLACE OF HEARING:                                                        Toronto, Ontario

DATE OF HEARING:                                                          September 15, 2008

REASONS FOR JUDGMENT OF THE COURT BY:       (NADON, SEXTON & PELLETIER JJ.A.)

DELIVERED FROM THE BENCH BY:                            NADON J.A.

APPEARANCES:

SOLICITORS OF RECORD: