Docket: A-454-16
Citation:
2017 FCA 245
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CORAM:
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DAWSON J.A.
STRATAS J.A.
RENNIE J.A.
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BETWEEN:
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MANSOUR
BOROUMEND
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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
December 12, 2017).
DAWSON J.A.
[1]
The appellant taxpayer was reassessed under the Income
Tax Act, R.S.C., 1985, c. 1 (5th Supp.) on August 25, 2008, in respect of
the 2003 and 2004 taxation years. On March 14, 2016, the appellant filed a
notice of appeal from the reassessment in the Tax Court of Canada. The
respondent Crown then moved to quash the appeal arguing that, because a notice
of confirmation was sent to the appellant on October 29, 2009, confirming the
reassessments, the appeal was filed out of time and the last day on which a
request for an extension of time in which to file the notice of appeal could
have been made was January 27, 2011.
[2]
In thorough and thoughtful reasons cited as 2016
TCC 256, the Tax Court found that it was more likely than not that a notice of
confirmation was sent to the appellant on October 29, 2009. It followed that
the appeal was brought well out of time and that it was too late to seek an
extension of time for filing the notice of appeal. The notice of appeal was
therefore quashed.
[3]
The appellant now appeals from the order of the
Tax Court quashing the appeal.
[4]
In our view, the Tax Court made no palpable and overriding
error of fact or mixed fact and law, and no error of law. The Tax Court’s finding
of fact that the notice of confirmation was most probably mailed on October 29,
2009, was amply supported by the evidence, as detailed by the Tax Court at
paragraphs 22 to 24 of its reasons. Nor did the Tax Court err in its
interpretation of Rule 44(2) of the Tax Court of Canada Rules (General
Procedure), SOR/90-688a.
[5]
Both in the Tax Court and in this Court the
appellant argued that because the Crown had not yet filed a reply to his notice
of appeal, and because the Court had not yet granted an extension of time to
the Crown to file its reply, pursuant to Rule 44(2) the facts pleaded in the
appellant’s notice of appeal must be presumed to be true. The notice of appeal
asserted that the appellant did not receive a notice of confirmation for either
taxation year.
[6]
The Tax Court rejected this submission, finding
that Rule 44(2) has potential application where:
i.
no reply has been filed in the Tax Court within
the permitted 60-day period and no extension of time for filing a reply has
been granted;
ii.
no reply has been filed within the 60-day
period, an extension of time has been granted but no reply was filed within the
extended period for filing; or
iii.
no reply has been filed within the 60-day
period, and the Crown has not applied within that 60-day period for an
extension of time to file a reply.
[7]
In the present case, the Crown was not in any of
these situations because it had moved on a timely basis for an extension of
time to file a reply and the Court had not yet ruled on that request.
[8]
We agree with the Tax Court’s interpretation of
Rule 44(2). The presumption that, if a reply is not filed within one of the
periods specified in Rule 44(1), the allegations of fact contained in a notice
of appeal are presumed to be true could not operate unless the Tax Court had
previously rejected the Crown’s timely request for an extension of time to file
a reply, if required.
[9]
It follows that the appeal will be dismissed
with costs.
“Eleanor R. Dawson”
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