Docket: A-472-14
Citation:
2015 FCA 239
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CORAM:
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RYER J.A.
BOIVIN J.A.
RENNIE J.A.
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BETWEEN:
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CONNIE O'BYRNE
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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 Calgary, Alberta, on November
2, 2015).
RYER J.A.
[1]
This is an appeal by Connie O’Byrne (the “Taxpayer”)
from an amended order of Justice Patrick Boyle (the “Judge”) of the Tax Court
of Canada (2014 TCC 136). In the amended order, the Judge dismissed an
application by the Taxpayer to extend the time within which to serve notices of
objection to a number of assessments and a reassessment (the “Assessments”)
issued under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (the
“Act”) in respect of her taxation years from and including
1986 to and including 1997.
[2]
In 1992, the Taxpayer and her husband separated
and it was apparently agreed that any amounts owing under the Assessments would
be paid by him.
[3]
Upon becoming of an age that would entitle her
to Canada Pension Plan, Old Age Security and other federal benefits (the “Entitlements”),
the Taxpayer filed income tax returns for her 2009, 2010 and 2011 taxation
years. She was surprised and dismayed to learn that according to the Canada
Revenue Agency (the “CRA”), there was still an unpaid indebtedness in respect
of the Assessments, which had not been paid by her estranged husband and which amounted
to over $40,000 (the “Tax Arrears”).
[4]
After discussions with CRA officials in June of
2012, the Taxpayer applied for administrative relief in respect of the Tax Arrears.
The CRA denied this request by correspondence dated May 2, 2013.
[5]
On June 11, 2013, the Taxpayer filed a notice of
objection with respect to her 1986 to 1998 taxation years. In this regard, it
is noted that although the notice of objection included the Taxpayer’s 1998
taxation year, no Assessment was issued in respect of that year.
[6]
The notice of objection was treated by the Minister
as an application for an extension of time for serving a notice of objection, pursuant
to subsection 166.1(1) of the Act.
[7]
By correspondence dated June 26, 2013, the
Minister advised the Taxpayer that her application for an extension of time was
denied by virtue of the limitation in paragraph 166.1(7)(a) of the Act.
Under that provision, an application cannot be granted if it is made later than
one year after the end of the 90 day period in subsection 165(1) of the Act,
within which a notice of objection in respect of a taxation year can be filed. In
the circumstances, this limitation was missed by more than 10 years in relation
to each of the taxation years in respect of which the Taxpayer purported to
object.
[8]
By correspondence dated September 27, 2013, the
Taxpayer applied to the Tax Court of Canada, pursuant to subsection 166.2(1) of
the Act, for the extension of time relief that the Minister had denied in
respect of the Taxpayer’s application pursuant to subsection 166.1(1) of the
Act.
[9]
The Judge denied the Taxpayer’s application on
the basis that it was made outside of the time period referred to in paragraph
166.2(5)(a) of the Act in respect of each of the applicable taxation
years. That provision prevents the Tax Court of Canada from granting an
extension of time where the application to the Minister under subsection
166.1(1) was made more than one year after the expiration of the 90 day period
in subsection 165(1) of the Act, within which a notice of objection can be
filed.
[10]
The Judge determined that in fact the Taxpayer
did not wish to dispute any of the Assessments that were made against her. The
Judge described what he understood to be the Taxpayer’s real complaint in
relation to the computation of the amount of the Tax Arrears, explained why the
Tax Court of Canada had no jurisdiction to redress that complaint and urged
counsel for the Minister to provide whatever assistance he could to point the
Taxpayer in the direction of a possible avenue of redress for her complaint.
[11]
In appellate review of a decision of the Tax
Court of Canada, the standards of review are correctness, with respect to
questions of law, and palpable and overriding error, with respect to questions
of fact and mixed fact and law in respect of which there is no extricable
question of law (see Housen v. Nikolaisen, 2002 SCC 33, at paras. 7-37, [2002]
2 S.C.R. 235).
[12]
We are of the view that in reaching his
conclusion that the application for an extension of time to file the notices of
objection must be dismissed, the Judge made no errors of law, fact or mixed
fact and law.
[13]
We commend the Judge for his efforts in going
beyond what was necessary to explain the reasons for his denial of the
application, making clear the limitations of the Tax Court of Canada in
relation to the Taxpayer’s real complaint and describing other possible venues
where she might seek redress for that complaint.
[14]
The Appellant has served and filed a Notice of
Constitutional Question, raising for the first time a question of the
constitutional validity, applicability and effect of subsection 152(9) and
sections 166.1, 166.2, 222, 165 and 169 of the Act, on the basis that they
contravene sections 7 and 8 of the Canadian Charter of Rights and Freedoms.
[15]
In Guindon v. Canada, 2015 SCC 41, 387
D.L.R. (4th) 228, the Supreme Court of Canada confirmed that this
Court has the discretion to decide a newly raised constitutional question, in
respect of which a Notice of Constitutional Question has been served and filed,
but that such discretion should only be exercised in rare cases. In our view,
this is not one of those rare cases. Having regard to the evidentiary record
before the Court and the assertions of the Appellant, we are not persuaded that
addressing this newly presented constitutional challenge is required by the
public interest or important to the administration of the Act. Accordingly, we
decline to exercise our discretion to consider the Appellant’s constitutional
question.
[16]
For these reasons, the appeal will be dismissed
without costs.
“C. Michael Ryer”
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