Date: 20070626
Docket: 07-A-23
Citation: 2007 FCA 249
Present: EVANS
J.A.
BETWEEN:
RALPH THOM
Applicant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
EVANS J.A.
[1]
Ralph Thom
has brought a motion in writing pursuant to Rule 369 of the Federal Courts
Rules requesting an extension of time to file a notice of appeal from a
decision of the Tax Court of Canada, which had dismissed his appeal against the
reassessments of his income tax liability for the taxation years 1999 and 2000.
[2]
Mr Thom’s
motion is dated April 20, 2007. The judgment of the Tax Court against which Mr
Thom wishes to appeal was delivered orally from the Bench on August 16, 2004,
and the written judgment was signed by the Judge on August 31, 2004. An appeal
to this Court from a final judgement of the Tax Court must be commenced within
30 days from the date of the judgment: Federal Courts Act, R.S.C. 1985,
c. F-7, paragraph 27(2)(b). Thus, Mr Thom has requested an extension of
time more than two and a half years after the time for appealing expired. The
respondent opposes the motion.
[3]
In
exercising its discretion to grant an extension of time, the Court must
consider, among other things, the length of the delay, and whether, before the
time for appealing expired, the individual had an intention to appeal; whether there
are circumstances justifying the delay; whether the appeal would have any merit;
whether the respondent would be prejudiced by the extension of time requested;
and whether, in all the circumstances, it would be in the interests of justice
to grant the extension. I shall briefly consider these factors.
[4]
Length
of the delay:
When Parliament has stated that an appeal must be commenced within 30 days. A delay
of more than two and a half years is therefore substantial. This factor
militates against granting the extension.
[5]
Intention
to appeal: Mr
Thom has provided no evidence that, before the end of October 2004 when the
appeal period expired, he intended to commence an appeal. Indeed, he does not
allege in his motion that he had this intention. He first contacted the Court
in September 2006 respecting an appeal, but his material was returned because
he had not provided the necessary basic identity and contact information. The
Registry provided him with a copy of the Federal Courts Rules. He
subsequently attempted to file a motion for an extension of time, but again his
material was not accepted because it did not comply with the Rules. When he
went to the local office, Registry staff explained to him how to compile a
motion record.
[6]
This
factor does not favour granting the extension.
[7]
Special
circumstances:
Mr Thom says that he did not file a notice of appeal earlier because he was
advised by an official of the Canada Revenue Agency after his appeal was
dismissed that “the matter was under investigation” and that he did not
receive a letter from the Agency stating that “the decision was
final” until two years later. Mr Thom has not produced this letter, nor
provided an affidavit or any other evidence to support his vague allegations. The
respondent denies that the Tax Court decision was under investigation and
states that there is no record of any contact with Mr Thom after the Tax Court
dismissed his appeal.
[8]
In view of
the absence of evidence supporting Mr Thom’s allegations, other than his own
unsworn statements, I cannot afford this factor much weight.
[9]
Merit
in an appeal:
Mr Thom does not indicate in his motion on what grounds he wishes to appeal.
Since he elected to proceed in the Tax Court by way of the informal procedure (Tax
Court of Canada Act, R.S.C. 1985, c. T-2, section 18), he may only appeal
on the limited grounds set out in subsection 27(1.3) of the Federal Courts
Act. In essence, these grounds are restricted to errors of law, findings of
fact supported by no evidence, and procedural unfairness.
[10]
Mr Thom’s
failure to address these grounds in his motion, or to provide any information
that would enable the Court to assess whether an appeal would have any prospect
of success, militates against the grant of an extension of time.
[11]
Prejudice
to the respondent:
The respondent states that it would be prejudiced if Mr Thom were permitted to
commence an appeal so long after the time for appealing had expired. The Canada
Revenue Agency was entitled to assume, after a delay, that there would be no
appeal from the Tax Court’s decision, and to act on the assumption that the
matter was closed.
[12]
Although
the respondent did not make a more specific allegation of any actual prejudice
that it would suffer if Mr Thom were permitted to appeal, this factor weighs
against granting the extension.
[13]
The
interests of justice:
Mr Thom is representing himself in this matter. I shall assume that he is not a
lawyer and has no experience of litigation in this Court. Because most people
are not familiar with the litigation process, the Court typically allows self-represented
appellants some latitude when they fail to comply with the Rules, in order to
enhance individuals’ access to justice. And, as happened in this case, the
Registry assists self-represented litigants.
[14]
Nonetheless,
litigation is a serious business which consumes public resources and, in
fairness to the other party, the Rules governing it apply to everyone,
including self-represented litigants. Neither the Registry nor the Court can
provide legal advice to litigants, actual or potential. Mr Thom appears to have
made no effort to familiarise himself with the Rules or to provide a clear and
credible explanation for his failure to commence an appeal within the
prescribed time, or soon afterwards.
[15]
This
factor does not assist Mr Thom.
[16]
For these
reasons, Mr Thom’s motion is dismissed and his request for an extension of time
is denied.
“John M. Evans”
Email this Content