Docket:
14-A-14
Citation:
2014 FCA 87
Present: STRATAS J.A.
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BETWEEN:
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MURAD DORAY
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Applicant
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and
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HER MAJESTY THE QUEEN
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Respondent
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REASONS FOR ORDER
STRATAS J.A.
[1]
The applicant moves for an order extending the
time to appeal a judgment of the Tax Court.
[2]
The applicant must demonstrate a continuing
intention to appeal, an arguable case for appeal, and a reasonable explanation
for the whole period of delay. Also relevant is whether the respondent is
prejudiced by the delay. See Grewal v. Canada (Minister of Employment and
Immigration), [1985] 2 F.C. 263 (C.A.). Citing Kaur v. Canada, 2011
FCA 292 at paragraph 2, the respondent suggests that the excessiveness of the
delay is also relevant. That is true, but only in the sense that a long delay
must be fully explained. It is conceivable that extensions of time can be
granted despite a very long delay where, among other things, the explanations
are adequate: Canada (Attorney General) v. Larkman, 2012 FCA 204.
[3]
These factors are to be assessed with a view to
determining whether, overall, it is in the interests of justice that an
extension of time be granted: Larkman, supra.
[4]
To determine whether the applicant has met the
legal standard permitting an extension of time, it is first necessary to review
what happened when.
[5]
The Tax Court rendered its judgment orally on
October 3, 2013. The applicant received the certified true copy of the judgment
on October 8, 2013.
[6]
Within the 30 day deadline, the applicant
reviewed the Tax Court’s website for guidance on how to appeal. On October 24,
2013, the applicant completed a Tax Court notice of appeal form and sent it to
the Tax Court. This shows an intention to appeal the Tax Court’s judgment
within the 30 day period, albeit an intention that was not effective.
[7]
After the expiry of the 30 day deadline, on
November 12, 2013 and November 19, 2013, counsel for the respondent advised the
applicant by email that he needed to direct his queries to this Court. It is
evident from the email correspondence that, through no fault of his own, the
applicant was not knowledgeable about how to appeal the Tax Court’s judgment.
[8]
On December 22, 2013, the Tax Court advised the
applicant that he needed to appeal to this Court, not the Tax Court. On January
3, 2014, the Registry of this Court advised the applicant that if he were to
appeal to this Court, he would need to seek an extension of time. On January
10, 2014, rather than attending to that quickly, the applicant wrote the Registry
of this Court, explaining that he had previously followed “all pertinent
directions,” but also signalled a willingness to comply with the procedures of
the Court. A week later, on January 17, 2014, the Registry of this Court wrote
the applicant and outlined the procedure for both an appeal and for a motion
seeking an extension of time.
[9]
To this point, on a generous interpretation of
the events, the applicant’s delay might be explained by lack of knowledge and
confusion. It is a generous interpretation because as early as mid-November the
applicant was on notice that there were irregularities that needed to be
addressed, yet the applicant did very little, if anything, to address them.
[10]
But even on that generous interpretation of
events, there is an unexplained 57 day delay leading up to this motion for an
extension of time. As of January 17, 2014, the applicant had all the
information necessary to present a proper notice of appeal to this Court along
with a motion for an extension of time. Yet, 57 days – almost two times the
normal 30 day time period for launching an appeal – went by before the
applicant moved for an extension of time. This delay is unexplained.
[11]
In addition, the applicant has not provided the
notice of appeal that will be filed if this Court grants the extension of time.
The motion materials contain a Tax Court document entitled “notice of appeal,”
but that document does not comply with Rule 337.1 of the Federal Courts
Rules, is not in Form 337.1, nor does it set out any of the limited grounds
of appeal to this Court permitted by subsection 27(1.3) of the Federal
Courts Act, R.S.C. 1985, c. F-7. Quite simply, it is not clear that the
document entitled “notice of appeal” raises matters within this Court’s purview.
Accordingly, I am not satisfied from the material before me that there is an
arguable case on appeal.
[12]
The respondent, among other things, notes that
the style of cause in this motion is incorrect, naming as it does the counsel
for the respondent. I agree. The proper respondent is Her Majesty the Queen.
Therefore, the style of cause in this motion shall be amended to reflect this.
[13]
For the foregoing reasons, I shall dismiss the
motion. Appropriately, the respondent does not seek costs and so none shall be
awarded.
"David Stratas"
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