Docket: A-121-15
Citation:
2016 FCA 33
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CORAM:
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TRUDEL J.A.
STRATAS J.A.
RYER J.A.
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BETWEEN:
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ABDUL GHAFFAR
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Appellant
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and
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HER MAJESTY THE
QUEEN
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on
January 28, 2016).
TRUDEL J.A.
[1]
In a decision cited as 2015 TCC 46, the Tax
Court of Canada (Graham J.) dismissed Mr. Ghaffar’s application under
subsection 140(2) of the Tax Court of Canada Rules (General Procedure),
SOR/90-688a, (Rules), to set aside a previous judgment of the Tax Court
dismissing his appeal for failure to appear at a status hearing. Mr. Ghaffar’s
lawyer, at the time of that status hearing, neither informed him of the hearing
nor appeared on his behalf, and Mr. Ghaffar did not know about it until he was
alerted to the judgment dismissing his appeal.
[2]
Graham J. dismissed the application on the basis
that it was not submitted within thirty days of the judgment, as provided in
subsection 140(2) of the Rules, and in his view, Mr. Ghaffar did not satisfy
the test to allow an extension of time. It would have been necessary to
determine that an extension of time is warranted before proceeding to consider
the application on its merits.
[3]
Whether to extend time is a discretionary
decision to be made in accordance with a four-factor test, enunciated by the
Tax Court at paragraph 4:
a)
a continuing intention to pursue the appeal;
b)
that the appeal has some merit;
c)
that no prejudice to the Respondent arises from
the delay; and
d)
that a reasonable explanation is given for the
delay.
[4]
The Tax Court found that while Mr. Ghaffar’s tax
appeal has merit, and although he had a reasonable explanation for failing to
attend the status hearing, he nonetheless failed to satisfy each of the other
elements. In particular, Mr. Ghaffar demonstrated a lack of intention to pursue
his appeal by failing to meet his undertakings, the respondent would suffer
irreparable prejudice, and Mr. Ghaffar was unable to provide a reasonable
explanation for the delay in bringing the application to set aside the judgment
dismissing his appeal, at least 16 months after the deadline for such an
application (Tax Court reasons at paragraphs 15 and 20).
[5]
We do not accept Mr. Ghaffar’s submissions that
Graham J. applied the incorrect legal test or that his approach was
unjustifiably rigid. The test he applied is consistent with the authorities on
which Mr. Ghaffar relies (Izumi v. The Queen, 2014 TCC 108; GMC Distribution
Ltd. v. The Queen, 2009 TCC 287), setting out the same four factors.
[6]
In any event, Graham J. followed the binding
authority of this Court (Tomas v. Canada, 2007 FCA 86, [2007] 3 C.T.C.
75), and his reasons demonstrate careful consideration of the relevant factors
and the evidence underlying his decision. Even if we were to accept Mr.
Ghaffar’s argument that Graham J. erred in his assessment of prejudice to the appellant
relative to that of the respondent, this would not outweigh the other considerations
or justify our interference with his overall conclusion.
[7]
The appeal will therefore be dismissed with
costs.
"Johanne Trudel"
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