Citation:
2017TCC198
Date: 20170929
Docket: 2016-4561(GST)APP
BETWEEN:
RICK
HORSEMAN,
Applicant,
and
HER
MAJESTY THE QUEEN,
Respondent.
REASONS
FOR JUDGMENT
Russell J.
[1]
Mr. Rick Horseman applies for an order granting
an extension of time to file a notice of appeal with this Court in respect of a
goods and services tax (GST) assessment under the Excise Tax Act
(Canada) (Act). According to the application notice the pertinent notice of
(re)assessment, “purportedly [had been] sent in 2011”. This application, commenced
October 18, 2016, is brought pursuant to section 305 of the Act, as indicated
in paragraph 6 of the intended notice of appeal appended to the application
notice.
[2]
For purposes of this application the Respondent
accepts the facts set out in paragraphs 1 through 6 of the Applicant’s initial written
argument. They include that the Applicant is an Indian living on a reserve, he
is a former band councillor and chief, he carried out work grading roads on
reserves, he owned a company named R&R Grading Services Ltd. which was
struck by the Alberta Register of Corporations in 1999 and in 2015 he, “accepted temporary work on the Blueberry First Nation and on
the Halfway River First Nation (both Treaty No. 8 First Nations).”
And, all monies earned were seized by the Receiver General under Requirements
to Pay, plus Canada Revenue Agency seized his 2016 tax refund.
[3]
The application notice states that GST cannot be
owed, “for monies earned on Reserve by an Indian”,
citing the Constitution Act, 1982, section 87 of the Indian Act
and paragraph 81(1)(a) of the federal Income Tax Act (ITA).
[4]
The notice additionally asserts that Canada
Revenue Agency (CRA) engaged in unconstitutional actions in initiating the Requirements
to Pay garnishees, and that “[statutory] limitations do
not apply to unconstitutional actions”. It further states that it, “is just and equitable to grant an extension of time to
appeal actions of [CRA] which are without statutory authority”. It concludes,
stating that the Applicant, “took immediate steps to
dispute the [garnishee] Requirements to Pay and is within one year of the
dismissal of his notice of objection. He has exhibited his intention throughout
to appeal.”
Facts:
[5]
Pertinent facts from the parties’ filed
materials and oral submissions in Court:
a)
On March 28, 2011 the Minister of National
Revenue (Minister) assessed the Applicant under the Act for GST liabilities.
The Applicant states that he did not receive the pertinent notice of
(re)assessment. He states he first knew of this assessment in mid or late
summer of 2015, and then was provided a copy of the pertinent notice of
(re)assessment which shows a mailing date of March 28, 2011.
b) In July 2015, pursuant to subsections 317(1) and (2) of the Act, the
Minister served Requirements to Pay upon two corporations requiring them to pay
to the Receiver General monies owing to the Applicant on account of the
Applicant’s tax debt.
c)
On July 23, 2015 the Minister mailed the Applicant
a statement of the latter’s GST arrears, dated July 23, 2015. On or about
September 24, 2015 the Applicant by his counsel sent to the CRA Chief of
Appeals in Winnipeg a single page notification dated September 24, 2015 headed
“Facts and Reasons for Objection”, stated as being in relation to a “Notice”
dated July 23, 2015.
d) By this time approximately, if not prior, the Applicant had a copy
of the above-mentioned March 28, 2011 notice of (re)assessment.
e)
By letter dated October 7, 2015 to the Applicant
the Minister informed that the Applicant’s “Notice of Objection” could not be
recognized as valid as it disputed a Statement of Arrears dated 2015-07-23, and
that a statement of arrears is not a notice of (re)assessment. (I
parenthetically add that however there was no response to this from the
Applicant, such as for instance advising the Minister he had just recently
received the March 28, 2011 notice of (re)assessment and that it was
that assessment he intended to object to.)
f)
Rather, on October 30, 2015 the Applicant
commenced by way of statement of claim an action in Federal Court against the
Respondent, seeking damages in respect of the above-referenced garnishees,
asserting that as an Indian he was not liable for taxation under the Act. A
list of documents filed by the Applicant in that action included as item 8 the above-referenced
notice of (re)assessment issued under the Act, dated March 28, 2011.
g)
On March 7, 2016 the Federal Court struck the
aforementioned statement of claim, without leave to amend, as the claim
disclosed no reasonable cause of action. The Applicant’s appeal of this
decision to the Federal Court of Appeal was dismissed October 17, 2016, with
that Court concluding (2016 FCA 252), that the Applicant’s claim was “… nothing but a challenge to the validity of the [March 25,
2011] tax re-assessment.” It was the Tax Court of Canada, not the
Federal Court, that had sole jurisdiction to adjudicate federal tax
assessments. The following day, October 18, 2016, the Applicant filed with this
Court the herein application for an order to extend time to file a notice of
appeal.
h)
Several months later, on February 23, 2017 the
Applicant filed a notice of constitutional question in respect of this matter (ostensibly
per section 19.2 of the federal Tax Court of Canada Act), and
served that notice upon the federal Attorney General and all provincial
Attorneys General. The notice notifies of the Applicant’s intent to question, “…the constitutional applicability or effect of the
provisions of the [Act] and Income Tax Act to an Indian living on
Reserve as provided in the Indian Act, R.S.C. 1985, c. I-5, section 87
and Treaty No. 8 as well as the Constitution Act.”
i)
At the March 29, 2017 return of this application
the only parties appearing were the Applicant and Respondent. At the conclusion
of the short hearing the matter was adjourned to give the parties time to file additional
written representations.
Issue:
[6]
The issues are:
i.
whether the Act’s prerequisite provisions for
the filing of a notice of appeal, including temporal limitations, apply
notwithstanding that the prospective appellant’s intended argument is that the
Act is unconstitutional in its application to Indians; and
ii.
if yes, does the Applicant meet the requirements
per section 305 of the Act so as to permit an order extending time for him
to file a notice of appeal in this Court.
Applicant’s Position:
[7]
In initial written submissions the Applicant
asserted (paragraph 23) simply that he, “…has reasonable grounds to appeal and
that it is just and equitable to grant the extension of time to file his Notice
of Appeal.” There was no reference to any underlying facts that made the filing
of a notice of appeal out of time in the first place, so as to necessitate this
application for a time extension to so file.
[8]
In oral submissions the Applicant’s position was
that no provisions of the Act governing filing of a notice of appeal could
apply here where the Applicant was asserting, per section 87 of the Indian
Act, infringement of his constitutional right not to be taxed in respect of
property on a reserve.
[9]
In addition to section 87 of the Indian Act,
the Applicant cited Fred Kelly v Her Majesty, 2013 FCA 171 and Her
Majesty v Robertson et al, 2012 FCA 94, which decisions interpreted and
applied the seminal Supreme Court of Canada (SCC) decision, Williams v
Canada, [1992] 1 S.C.R. 877, and follow-up SCC decisions, Bastien Estate v
Canada, 2011 SCC 38 and Dubé v Canada, 2011 SCC 39. These decisions
each address the test for application of section 87 of the Indian Act,
being identification of factors of a factual nature relevant in determining, in
any given case, an Indian claim for exemption from taxation.
[10]
The Applicant in reply to the Respondent’s
submissions asserted that none of the Respondent’s cited authorities
establishes that statutory limitation periods continue to apply notwithstanding
a claim of unconstitutionality.
[11]
Also, the Applicant cited Manitoba Métis
Federation Inc v Canada, [2013] 1 S.C.R. 623, at paragraphs 133-144 and 150,
submitting that in Métis the SCC majority held that the law of
limitations does not preclude a declaration that a statute was
unconstitutional.
Respondent’s Position:
[12]
The Respondent’s position is that this
application has been brought incurably out of time. This is in light of the
Applicant’s non-observance of limitation and other prerequisite provisions in
the Act pertaining to the filing of a notice of appeal in this Court.
Fundamentally such provisions require that a valid notice of objection previously
have been filed. These provisions do not cease to apply simply because the
prospective appellant asserts unconstitutionality of the underlying statute,
here the Act. The Respondent cites Papaschase Indian Band No. 136 (aka,
Lameman) v Canada, 2008 SCC 14, Wewaykum Indian Band v Canada,
2002 SCC 79, Samson Indian Nation v Canada, 2015 FC 836 and Ermineskin
Indian Band v Canada, 2016 FCA 223.
Analysis:
A. Issue
(i) – whether the Act’s prerequisite provisions for the filing of a notice of
appeal, including temporal limitations, apply notwithstanding the prospective
appellant’s intended argument that the Act is unconstitutional in its
application to Indians:
[13]
This application for extension of time to file a
notice of appeal in this Court is brought pursuant to section 305 of the Act,
which provides:
Extension of time to appeal
305 (1) Where no appeal to the Tax Court under
section 306 has been instituted within the time limited by that provision for
doing so, a person may make an application to the Tax Court for an order
extending the time within which an appeal may be instituted, and the Court may
make an order extending the time for appealing and may impose such terms as it
deems just.
(2) An
application made under subsection (1) shall set out the reasons why the appeal
to the Tax Court was not instituted within the time otherwise limited by this
Part for doing so.
(3) An
application made under subsection (1) shall be made by filing in the Registry
of the Tax Court, in accordance with the provisions of the Tax
Court of Canada Act, three copies of the application accompanied
by three copies of the notice of appeal.
(4) After
receiving an application made under this section, the Tax Court shall send a copy
of the application to the office of the Deputy Attorney General of Canada.
(5) No
order shall be made under this section unless
(a) the
application is made within one year after the expiration of the time otherwise
limited by this Part for appealing; and
(b) the
person demonstrates that
(i) within
the time otherwise limited by this Part for appealing,
(A) the
person was unable to act or to give a mandate to act in the person’s name, or
(B) the
person had a bona fide intention to appeal,
(ii) given
the reasons set out in the application and the circumstances of the case, it
would be just and equitable to grant the application,
(iii) the
application was made as soon as circumstances permitted it to be made, and
(iv) there
are reasonable grounds for appealing from the assessment.
[14]
The Applicant’s application notice does not
specify any particular provisions of the Act that he may consider
unconstitutional in light of section 87 of the Indian Act, which
provision he approvingly cites.
[15]
As noted by the Respondent the Act itself was
found constitutional by the SCC in Reference re Excise Tax Act (Canada),
[1992] 2 S.C.R. 445.
[16]
I have reviewed the parties’ cited authorities.
In my view the first issue as set out above is wholly answered by the Supreme
Court of Canada’s 2013 decision in Manitoba Métis, cited above.
[17]
In Manitoba Métis the appellants brought
an action against the federal and Manitoba governments asserting that they had
failed in exercise of fiduciary obligations claimed to have been owed to the Métis
in carrying out land division and allocation to Métis children per
provisions of the federal Manitoba Act, 1870. The specific
constitutional claim was that five Manitoba statutes subsequently passed and
ancillary to the said federal statute were unconstitutional; and a declaration
to that effect was sought. These five Manitoba statutes were now long repealed.
[18]
A majority of the SCC affirmed that there had
been no fiduciary obligation, and in any event none breached. Also, the SCC
would not now, in 2013, consider the constitutionality of the particular five
Manitoba statutes – repealed 44 years earlier, in 1969. But, the majority went
on to find that a constitutional duty was owed, under the head of the “honour of the Crown”, and that the conduct of government
officials a century and more ago in respect of the land allocation provided for
in the Manitoba Act, 1870, had been so non-diligent as to fail to uphold
the honour of the Crown.
[19]
The majority then considered whether a Manitoba
statutory general limitation provision should apply here, noting the
constitutional context. There is a juristically-developed principle that a
claim for declaratory relief in respect of legislative constitutionality may
proceed notwithstanding an otherwise applicable limitation provision. The
majority chose to extend this principle to the Manitoba Métis
appellants, in the context of the declaratory relief they sought as to breach
of the government’s constitutional duty to uphold the honour of the Crown.
[20]
In this regard, in the majority decision of Manitoba
Métis, per the Chief Justice and Karakatsansis, J, paragraphs 132 to
137 read in relevant part (underlining added for emphasis):
[132] These [five
Manitoba] statutes have long been out of force. They can have no future
impact. Their only significance is as part of the historic matrix of the Métis’
claims. In short, they are moot. To consider their
constitutionality would be a misuse of the Court’s time. We therefore
need not address this issue.
E. Is the Claim for
a Declaration Barred by Limitations?
[133] We have
concluded that Canada did not act diligently to fulfill the specific obligation
to the Métis contained in s. 31 of the Manitoba Act, as required by the
honour of the Crown. For the reasons below, we conclude that the law of
limitations does not preclude a declaration to this effect.
[134] This
Court has held that although claims for personal remedies flowing from the
striking down of an unconstitutional statute are barred by the running of a
limitation period, courts retain the power to rule on the constitutionality of
the underlying statute: Kingstreet Investments Ltd. v. New Brunswick
(Finance), 2007 SCC 1, [2007] 1 S.C.R. 3; Ravndahl v. Saskatchewan,
2009 SCC 7, [2009] 1 S.C.R. 181. The constitutionality of legislation has
always been a justiciable question: Thorson v. Attorney General of Canada,
[1975] 1 S.C.R. 138, at p. 151. The “right of the citizenry to constitutional
behaviour by Parliament” can be vindicated by a declaration that legislation is
invalid, or that a public act is ultra vires: Canadian Bar Assn. v.
British Columbia, 2006 BCSC 1342, 59 B.C.L.R. (4th) 38, at paras. 23 and
91, citing Thorson, at p. 163 (emphasis added). An “issue [that is]
constitutional is always justiciable”: Waddell v. Schreyer (1981), 126
D.L.R. (3d) 431 (B.C.S.C.), at p. 437, aff’d (1982), 142 D.L.R. (3d) 177
(B.C.C.A.), leave to appeal refused, [1982] 2 S.C.R. vii (sub nom. Foothills
Pipe Lines (Yukon) Ltd. v. Waddell).
[135] Thus,
this Court has found that limitations of actions statutes cannot prevent the
courts, as guardians of the Constitution, from issuing declarations on the
constitutionality of legislation. By extension, limitations acts cannot prevent
the courts from issuing a declaration on the constitutionality of the Crown’s
conduct.
[136] In this
case, the Métis seek a declaration that a provision of the Manitoba Act
– given constitutional authority by the Constitution Act, 1871 – was not
implemented in accordance with the honour of the Crown, itself a
“constitutional principle”: Little Salmon, at para. 42.
[137] Furthermore, the Métis seek no personal
relief and make no claim for damages or for land. Nor do they seek
restoration of the title their descendants might have inherited had the Crown
acted honourably. Rather, they seek a declaration that a specific obligation
set out in the Constitution was not fulfilled in the manner demanded by the
Crown’s honour. They seek this declaratory relief in order to assist them in
extra-judicial negotiations with the Crown in pursuit of the overarching
constitutional goal of reconciliation that is reflected in s. 35 of the Constitution
Act, 1982.
[21]
In the Manitoba Métis minority decision of
Rothstein and Moldaver JJ, per Rothstein, J, the matter of limitations
in the context of constitutional claims was spoken to even more directly. Their
paragraphs 224 to 227 under the heading “Limitations and Constitutional Claims”
reads:
(3) Limitations and
Constitutional Claims
[224] My colleagues
assert that limitations legislation cannot apply to declarations on the
constitutionality of Crown conduct. They also state that limitations acts
cannot bar claims that the Crown did not act honourably in implementing a
constitutional obligation. With respect, these statements are novel. This Court
has never recognized a general exception from limitations legislation for
constitutionally derived claims. Rather, this Court has consistently held that
limitations periods apply to factual claims with constitutional elements.
[225] The majority
notes that limitations periods do not apply to prevent a court from declaring a
statute unconstitutional, citing Kingstreet
Investments Ltd. v. New Brunswick (Finance), 2007 SCC 1, [2007] 1 S.C.R. 3;
Ravndahl v. Saskatchewan, 2009 SCC 7, [2009] 1 S.C.R. 181; and Thorson
v. Attorney General of Canada, [1975] 1 S.C.R. 138. While I agree,
the constitutional validity of statutes is not at issue in this case.
Instead, this is a case about factual issues and alleged breaches of
obligations which have always been subject to limitations periods,
including on the facts of Ravndahl and Kingstreet.
[226] Kingstreet and Ravndahl make clear that there is an exception to the
application of limitations periods where a party seeks a declaration that a
statute is constitutionally invalid. Here, my colleagues
have concluded that the Métis’ claim about unconstitutional statutes is
moot. The remaining declaration sought by the Métis has nothing to do
with the constitutional validity of a statute.
[227] Instead, what the
Métis seek in this case is like the personal remedies that the applicants
sought in Kingstreet and Ravndahl. The Métis are asking this
Court to rule on a factual dispute about how lands were distributed over 130
years ago. While they are not asking for a monetary remedy, they are
asking for their circumstances and the specific facts of the land grants to be
assessed. As this Court said in Ravndahl:
Personal claims for constitutional
relief are claims brought as an individual qua individual for a personal
remedy. As will be discussed below, personal claims in this sense must be
distinguished from claims which may enure to affected persons generally under
an action for a declaration that a law is unconstitutional. [para. 16]
These claims are made by individual Métis and their
organized representatives. The claims do not arise from a law which is
unconstitutional. Rather, they arise from individual factual circumstances. As
a result, the rule in Kingstreet and Ravndahl that individual
factual claims are barred by limitations periods applies to bar suit in this
case.
[underlining added
for emphasis]
[22]
These extracts from the SCC majority and
minority decisions of Manitoba Métis make clear that limitation
provisions apply in considering claims for personal remedies, regardless that
the claims have a constitutional basis. Limitation provisions do not apply when
a declaration as to unconstitutionality is sought, but they do apply if the
claim of statutory unconstitutionality is raised in the context of a private
claim. (The Federal Court reached a conclusion consistent with this view in Samson
Indian Nation (supra), affirmed by the FCA in Ermineskin Indian
Band (supra).)
[23]
That is the case here – this appeal is a private
claim of an individual, seeking monetary relief in respect of his personal tax
situation.
[24]
Thus, the answer
to the first issue is yes, the Act’s prerequisite provisions for filing a
notice of appeal do continue to apply, regardless that the Appellant’s
intended argument is based on constitutional grounds.
B. Issue
(ii) - as the answer to issue (i) is yes the Act’s prerequisite provisions for
filing a notice of appeal do continue to apply, the remaining issue is
whether the Applicant meets the requirements of section 305, to permit issuance
of an order extending time for the filing of a notice of appeal in this Court.
[25]
The first requirement of section 305 is
expressed in subsection 305(2) - provide reasons for why no appeal under
section 306 had been instituted within the time limited by that section. Section
306 provides as follows:
306 A person who
has filed a notice of objection to an assessment under this Subdivision may
appeal to the Tax Court to have the assessment vacated or a reassessment made
after either
(a) the Minister has confirmed the assessment or has reassessed, or
(b) one hundred and eighty days have elapsed after the filing of the
notice of objection and the Minister has not notified the person that the
Minister has vacated or confirmed the assessment or has reassessed,
but no appeal
under this section may be instituted after the expiration of ninety days after
the day notice is sent to the person under section 301 that the Minister has
confirmed the assessment or has reassessed.
[26]
The times limited by section 306 for filing a
notice of appeal are: (1) on or before 90 days after, in response to a notice
of objection, the date of the Minister’s confirmation of the objected-to
assessment or the Minister’s issuance of a reassessment; and (2) 180 days or
more following the filing of a notice of objection, while in the meantime the
Minister has not advised the objector that the Minister has vacated or
confirmed the objected–to assessment, or has reassessed.
[27]
In the case at bar, neither of these time limits
has been commenced, the simple reason being that no notice of objection has
ever been filed. Note that subsection 301(1.1) requires that a notice of
objection express objection to an assessment (which term includes a
reassessment). Subsection 301(1.1) provides:
Any person who
has been assessed and who objects to the assessment [who] may, within 90
days after the day the notice of assessment is sent to the person, file with
the Minster a notice of objection. [underlining added for emphasis]
[28]
Here, the assessment to be objected to is the
assessment raised March 28, 2011. The 90 days plus the one year
period for that assessment passed June 27, 2012 (the extra day as the initial
period of 90 days ended on a Sunday). That time period passes without any
proposed or attempted filing of either a notice of objection or an application
for extension of time to file a notice of objection.
[29]
The Applicant’s submitted reason for not filing
a notice of appeal within the permissible period is that he never received the
notice of (re)assessment ostensibly issued March 28, 2011, being the date on
the notice of (re)assessment. He further submits he only subsequently became
aware of it in mid-summer, 2015.
[30]
Whether the Applicant received the notice of
(re)assessment showing date of March 28, 2011 only shortly after that date, as
would have been normal as to when the notice would have been sent, or only
during the summer of 2015, he was aware of it at least by that latter time
period. Thereafter, the said notice appeared on his list of documents filed in
the Federal Court action. The Applicant did not, even then, seek to file any
notice of objection in relation to that assessment, raised March 28, 2011.
[31]
In late September 2015 the Applicant mailed to
the Minister a purported notice of objection but it referenced a statement of
GST arrears the Minister had sent to him in July 2015. The Minister promptly
responded by letter in early October 2015 advising the Appellant this was
not a valid notice of objection as it did not express objection to any
assessment. Notably, the Applicant did not respond to this, either then or later;
such as by writing to the Minister and advising he wished or intended to file a
valid notice of objection pertaining to the March 28, 2011 assessment, and
explaining that he had only first received the notice of (re)assessment
pertaining to that March 28, 2011 assessment in July or August of 2015.
[32]
Instead, the Applicant then chose to commence in
Federal Court the above referenced ill-fated action for damages. This led to
the Federal Court of Appeal determination a year later that effectively the
Applicant was seeking to appeal the March 28, 2011 assessment and for that he
had to go to this Court, being the court with jurisdiction over tax
assessments.
[33]
The next section 305 requirement is
expressed in paragraph 305(5)(a) - no application for extension of time can be
granted, “.. unless … made within one year after the
expiration of the time otherwise limited by this Part for appealing”.
[34]
The phrase, “the time
otherwise limited by this Part for appealing” makes relevant both
sections 302 and 306 of the Act. Section 306 is set out above and discussed. Section
302 reads as follows:
302 Where a
person files a notice of objection to an assessment and the Minister sends to
the person a notice of a reassessment or an additional assessment, in respect
of any matter dealt with in the notice of objection, the person may, within
ninety days after the day the notice of reassessment or additional assessment
was sent by the Minister,
(a) appeal therefrom to the Tax Court; or
(b) where an appeal has already been instituted in respect of the
matter, amend the appeal by joining thereto an appeal in respect of the
reassessment or additional assessment in such manner and on such terms as the
Tax Court directs.
[35]
As can be seen, section 302 provides for appeal
of a reassessment or additional assessment directly to Tax Court within 90 days
of the notice of reassessment or additional assessment having been sent by the
Minister in response to a notice of objection to an assessment. And, as
noted above, paragraphs 306(a) and (b) together provide that a person who has
earlier filed a notice of objection to an assessment may appeal to the Court
within 90 days following the Minister’s confirmation or reassessment of the
objected-to assessment, or any time after 180 days have passed since the filing
of the notice of objection of an assessment, when in the meantime the Minister
has not vacated or confirmed the objected-to assessment, or reassessed.
[36]
In each of these situations a statutory
prerequisite for filing a notice of appeal in the Tax Court is that a notice of
objection have been filed, on a timely basis.
[37]
I need not here go farther as to the section 305
requirements for an order extending time to file a notice of appeal. Neither of
the first two of these compulsory requirements that I have now discussed can be
met. The fundamental problem is that no valid notice of objection pertaining to
the March 28, 2011 assessment has been filed. No appeal gets to Tax Court
without a notice of objection having been filed with the Minister at an earlier
stage.
[38]
The Applicant claims that he did not receive the
March 28, 2011 notice of (re)assessment when it normally would have been sent
on March 28, 2011, and thus had no reason to consider he should file a notice
of objection.
[39]
Assuming this is so, he at least knew of the
notice of (re)assessment by approximately mid-summer of 2015, as noticed above.
He then would have received the Minister’s October 7, 2015 letter shortly
later, advising that to be a valid notice of objection the notice had to
express objection in respect of an assessment or reassessment.
[40]
Yet, even in the late summer of 2015 and remainder
of that year and extending through 2016 there is no evidence or indication of
any communication or effort by the Applicant to file or seek to file any notice
of objection to the March 28, 2011 assessment, or an application to extend time
to do so.
[41]
There is a real purpose in Parliament requiring
the filing of a valid notice of objection. It is to give the Minister an
opportunity to reconsider the particular assessment or reassessment in light of
the taxpayer’s objection, and then to adjust or even withdraw the assessment or
reassessment as thought fit by the Minister, without the matter having to move
forward to Tax Court through the filing in that Court of a notice of appeal.
[42]
Therefore, in the absence of a valid notice of
objection having been filed, or even an application having been filed for an
extension to file a notice of objection, this section 305 application to extend
time to file a notice of appeal must fail. The opening words of subsection
305(5), that “[n]o order shall be made under this section unless…” admit of no
discretion to conclude otherwise.
[43]
Accordingly this application is denied, although
without costs.
Signed at Ottawa,
Canada, this 29th day of September 2017.
“B. Russell”
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