Warren v. R., [1996] 1 CTC 2023

McArthur J.T.C.C.:-This is a motion by the applicant K.M. Warren for an order extending time for the applicant to appeal the judgment of this Court dated August 9, 1994 to the Federal Court of Appeal.

In his application the applicant submitted the following:

1. That the applicant represented himself in the above matter in Tax Court and due to ignorance of tax law did not understand the implications of the ruling.

2. That the full intent and ramifications of the ruling of the Court was recognised by the applicant after the time to appeal had expired.

3. That the applicant feels he has reasonable grounds for not being aware of implications of the Court’s ruling till after appeal time had expired.

Through error or omission the applicant did not make the Court of first instance clearly aware that an amount of approximately $11,500, was not income but obtained from the sale of assets already taken into account by the Minister and should not have been referred to as income twice. The applicant is asking for a second chance to explain the facts to another court.

A brief chronology of events pertinent to this matter is as follows:

1. March 1, 1990 - Notice of assessment issued to the applicant (appellant) in respect of his 1987 taxation year. The notice of assessment had revised the applicant’s taxable income to $58,328.96, following an investigation into his financial affairs.

2. May 29, 1990 - The applicant filed a notice of objection.

3. December 13, 1991 — Notice of reassessment issued.

4. March 5, 1992 — Notice of appeal filed.

5. May 19, 1992 — Reply to the notice of assessment filed.

6. September 15, 1993 - Status hearing before Judge Brulé, applicant did not appear. Appeal dismissed for non-appearance.

7. November 15, 1993 — Hearing of the application to set aside. Application to set aside was granted by Judge Bell. Trial set for hearing in Vancouver.

8. April 29, 1994 — General Procedure trial before Judge Margesson. Appeal allowed.

9. August 9, 1994 — Judgment signed at Ottawa, Canada. The taxpayer was substantially successful in his appeal. Judge Margeson determined that $27,795.78 of the $32,225.78 raised in the applicant’s notice of appeal should be excluded from his income.

10. October 14, 1994 -Taxation for costs heard by telephone conference call.

11. November 4, 1994 — Certificate of costs issued in the amount of $688.50. Bill of Costs submitted totalled $3780.50.

12. Applicant requested an extension of time to file an appeal with the Federal Court in a letter to the registry. He stated that he only recently began to understand the full implications of the Judge Margeson’s ruling and had he understood them earlier he would have appealed immediately. Furthermore he stated that due to insufficient funds he was unable to hire legal counsel and thus he was not aware of the time restrictions for filing an appeal with the Federal Court.

The Tax Court of Canada is charged with the responsibility of hearing applications for extensions of time to appeal to the Federal Court of Canada pursuant to section 17.6 of the Tax Court of Canada Act in accordance with section 27 of the Federal Court Act.

Section 17.6 of the Tax Court of Canada Act R.S.C. 1985, c.T-2 states:

An Appeal from a judgement of the Court (i.e. the Tax Court of Canada) in a proceeding in respect of which this section applies [1] lies to the Federal Court of Appeal in accordance with section 27 of the Federal Court Act, R.S. 1985, c. 51 (4th Supp.), section 5.

The relevant portions of section 27 of the Federal Court Act, R.S. 1985, c.51 (4th Supp.), section 5, state:

27(1) An appeal lies to the Federal Court of Appeal from any

(a) final judgement,

of the Tax Court of Canada

2(b) ... within 30 days,

after the pronouncement of the judgement or determination appealed from or within such further time as the trial division or the Tax Court of Canada, as the case may be, may, either before or after the expiration of those ten or thirty days, as the case may be, fix or allow.

At the hearing before me both the applicant and the respondent referred to a decision of this Court, Voloudakis v. R. (sub nom. Voloudakis v. Canada), [1994] 2 C.T.C. 2103, 94 D.T.C. 1439 (T.C.C.), wherein Judge Bell considered what criteria are relevant in determining whether an application for extension of time to file an appeal to the Federal Court should be allowed.

These criteria are: (1) that there was a bona fide intention to appeal, whatever the reasons for delay; (2) that the failure to appeal was the result of special circumstances which serve to excuse or justify the failure, and

(3) that it must at least be arguable that the judgement appealed from is wrong.

The criteria set out by Bell J. above are very similar to those expressed in section 167 of the Income Tax Act, the section which governs matters relating to extensions of time to appeal to the Tax Court of Canada.

In applying the criteria as stated in Vouloudakis I find:

1. The applicant did not have a bona fide intention to appeal within the 30-day period prescribed. It would appear that the applicant decided to appeal only after receiving the Minister of National Revenue’s reassessment pursuant to the judgment of this Court which was past the 30-day period.

2. I find no special circumstances to justify the failure to appeal.

3. The applicant provided no persuasive arguments to the effect that the judgment appealed from is wrong.

IT IS ORDERED, that the application for extension of time to file an appeal to the Federal Court of Appeal be dismissed.

Application dismissed.