Simpson,
J.:—This
is
a
motion
by
the
appellant
Karon
Resources
Inc.
("Karon")
for
leave
pursuant
to
Rule
27(2)
of
the
Federal
Court
Act,
R.S.C.
1985,
c.
F-7,
as
amended,
to
file
a
notice
of
appeal
beyond
the
30-day
limitation
provided
in
the
rule,
Facts
In
this
case,
the
facts
were
placed
before
me
in
a
variety
of
ways.
I
will
discuss
them
in
some
detail
so
as
to
be
clear
about
which
facts
I
accepted
as
evidence
properly
before
me.
The
affidavit
The
affidavit
of
Robert
Kondrat
("Kondrat")
sworn
on
September
7,
1993
was
filed
and
forms
part
of
the
evidence
(the
"affidavit").
It
provides
as
follows:
!,
ROBERT
KONDRAT,
President
of
Karon
Resources
Inc.,
of
the
City
of
Calgary,
in
the
Province
of
Alberta,
MAKE
OATH
AND
SAY
AS
FOLLOWS:
1.
That
I
have
a
personal
knowledge
of
the
facts
and
matters
hereinafter
deposed
to
save
and
except
where
stated
to
be
by
way
of
information
and
belief.
2.
That
I
had
intention
to
appeal
the
judgment
of
the
Tax
Court
of
Canada
delivered
on
April
15,
1993
by
the
Honourable
Judge
M.J.
Bonner.
3.
That
I
was
out
of
the
country
when
the
judgment
was
rendered
and
instructions
to
appeal
was
inadvertently
not
given
within
the
time
provided
by
the
Act.
I
further
erroneously
believed
the
time
for
appeal
was
120
days
rather
than
30
days.
4.
That
when
the
months
of
July
and
August
are
discounted,
the
delay
in
filing
the
appeal
is
slight
and
not
prejudicial
to
the
respondent.
5.
That
I
make
this
affidavit
in
support
of
an
application
for
an
extension
of
time
in
which
to
file
a
notice
of
appeal.
(The
grammatical
and
typographical
errors
appeared
in
the
original.)
The
affidavit
is
of
no
assistance
on
several
important
issues.
It
does
not
say
whether
Kondrat
formed
an
intention
to
appeal
during
the
appeal
period.
It
does
not
say
how
long
Mr.
Kondrat
was
out
of
the
country,
or
where
he
was.
It
does
not
provide
any
particulars
of
his
misinformation
about
the
appeal
period
and
it
does
not
deal
with
the
merits
of
the
appeal.
I
should
also
note
that
I
found
the
affidavit
bare
to
the
point
of
being
misleading.
I
think
it
a
fair
reading
of
the
affidavit
to
conclude
that
Kondrat
was
out
of
the
country
andcould
not
be
reached
when
the
decision
was
first
handed
down
on
April
15,
1993
and
that
his
absence
accounted,
in
part,
for
the
delay
in
dealing
with
the
appeal.
I
was
surprised
to
learn
during
argument
that
Mr.
Kondrat
had
been
present
with
his
counsel
and
had
heard
the
judgment
delivered
in
Court
on
April
7,
1993.
Agreed
facts
Counsel
agreed
on
a
number
of
factual
matters
during
their
submissions.
These
I
accepted
as
evidence
although
they
did
not
appear
in
the
affidavit.
They
were:
—
His
Honour
Judge
Bonner
of
the
Tax
Court
of
Canada
gave
judgment
orally
at
the
end
of
the
trial
on
April
7,1993
and
Kondrat
was
present
in
Court
with
his
counsel
to
hear
the
decision.
—
Kondrat
is
both
the
sole
shareholder
and
the
sole
directing
mind
of
Karon
in
addition
to
being
its
president.
—
The
first
notice
given
to
the
Crown
of
the
appellant's
intention
to
appeal
was
contained
in
a
letter
dated
July
8,
1993.
Counsel's
submissions
Counsel
for
the
appellant
introduced
the
following
additional
facts
in
his
submissions:
1.
On
August
4,
1993,
when
the
appellant’s
counsel
was
on
vacation,
his
agent
attempted
to
file
the
notice
of
appeal
and
was
told
it
was
out
of
time.
The
respondent
objected
that
this
was
not
in
evidence.
2.
The
agent
advised
appellant’s
counsel
promptly
of
the
problem.
This
was
appellant’s
counsel's
first
knowledge
that
he
had
missed
the
limitation
for
the
filing
of
his
notice
of
appeal.
3.
The
notice
of
motion
seeking
leave
was
not
filed
until
September
7,
1993
due
to
the
appellant’s
counsel's
vacation.
4.
During
his
submissions
counsel
for
the
appellant
provided
the
Court
with
a
copy
of
the
notice
of
appeal
which
his
agent
had
tried
to
file
on
August
4.
Counsel
for
the
respondent
noted
that
he
had
not
previously
seen
a
copy.
5.
The
explanation
for
Kondrat's
statement
in
the
affidavit
that
he
misunderstood
the
appeal
period
was
his
counsel's
failure
to
advise
him
about
the
correct
limitation
for
filing
the
notice
of
appeal.
6.
During
argument
on
the
merits
of
the
appeal,
extensive
factual
information
was
provided
relating
to
the
evidence
at
trial
and
general
background
matters.
Counsel
for
the
respondent
objected
to
these
submissions
in
the
absence
of
a
factual
basis
in
the
affidavit
and
in
the
absence
of
a
transcript.
In
my
view,
if
facts
are
obtained
during
a
hearing
through
submissions
from
one
counsel
without
the
agreement
of
opposing
counsel,
caution
should
be
exercised
in
deciding
whether
to
accord
those
facts
evidentiary
value.
Although
counsel
are
officers
of
the
Court,
facts
offered
in
the
course
of
submissions
are
unsworn,
cannot
be
tested
in
cross-examination
and
may
take
the
other
side
by
surprise.
Accordingly,
much
turns
on
the
nature
of
the
facts
and
the
purpose
for
which
they
are
being
provided.
If
they
are
limited
in
scope
and
are
provided
as
background
or
for
clarification
of
matters
already
in
evidence
or
relate
to
procedural
matters,
then
it
seems
to
me
that
the
Court
may
accord
such
facts
evidentiary
value.
If,
at
the
other
extreme,
the
submissions
introduce
material
facts,
which
are
known
only
to
one
counsel
and
which
are
the
only
information
on
critical
issues,
they
should
not
be
accepted.
I
have
therefore
concluded
that
I
have
no
proper
evidence
of
the
facts
in
counsel’s
submissions
numbered
1,
2,
3,
5
and
6
above.
I
have
accepted
the
notice
of
appeal.
The
merits
I
have
reviewed
several
decisions
which
list
the
types
of
factors
to
be
considered
in
exercising
discretion
in
a
case
of
this
kind
,
I
will
deal
with
the
factors
in
turn:
1.
Counsel
based
his
submissions
about
the
arguable
nature
of
the
appeal,
on
extensive
references
to
general
background
facts
and
to
facts
which
were
apparently
in
evidence
at
trial.
Counsel
for
the
respondent
objected
that
there
was
no
evidence
before
me
with
respect
to
the
background
or
the
trial
testimony.
Without
the
factual
background
before
me
in
either
the
affidavit
or
a
transcript,
I
was
unable
to
make
an
assessment
of
the
merits
of
the
appeal.
The
grounds
of
appeal
set
forth
as
the
notice
of
appeal
simply
demonstrate
that
an
appeal
exists.
They
shed
no
light
on
the
appeal’s
merits
and
I
am
not
persuaded,
based
on
the
notice
of
appeal,
that
the
appeal
raises
arguable
issues.
2.
Special
Circumstances
I
have
found
there
is
no
proper
evidence
before
me
on
this
subject
and
for
this
reason
the
application
must
fail.
The
affidavit
should
have
clearly
stated
that
a
solicitor’s
error
was
involved.
It
should
have
explained
the
error
and
shown
that
a
diligent
effort
was
made
to
correct
it
by
promptly
filing
an
application
for
an
extension
of
time
for
filing
the
notice
of
appeal.
3.
Prejudice
Counsel
for
the
Crown
argued
that
the
mere
fact
of
losing
the
certainty
of
a
successful
judgment
was
sufficient
prejudice
to
weigh
heavily
against
the
granting
of
an
extension.
I
do
not
agree.
In
the
absence
of
a
serious
delay,
special
circumstances
or
matters
which
cannot
be
compensated
in
costs,
I
am
not
prepared
to
say
that
an
extension
of
time
in
this
case
would
have
been
prejudicial
to
the
respondent.
4
Intention
to
Appeal
Although
I
have
insufficient
evidence
to
conclude
that
the
appellant
formed
his
intention
to
appeal
within
the
appeal
period,
there
is
no
doubt
that
he
had
the
necessary
intention
when
his
counsel
advised
the
respondent
about
the
appeal
by
letter
dated
July
16,
1993.
If
I
had
been
persuaded
on
the
issues
of
special
circumstances
and
an
arguable
appeal,
intention
would
not
have
been
a
barrier
to
granting
the
extension.
5.
Delay
Counsel
agreed
that
the
30-day
appeal
period
began
to
run
on
April
15,
1993.
This
motion
was
filed
on
September
7,
1993.
In
these
circumstances,
I
would
not
have
refused
leave
on
the
basis
of
excessive
delay.
6.
Interests
of
Justice
I
have
concluded
that,
in
the
particular
circumstances
of
this
case,
the
interests
of
justice
do
not
favour
the
granting
of
an
extension.
The
evidence
is
not
sufficient
to
justify
the
extension.
It
is
not
in
the
interests
of
justice
to
deprive
successful
parties
of
the
benefits
of
appeal
limitation
periods
in
cases
where
the
evidentiary
requirements
for
granting
an
extension
are
not
met.
Application
dismissed.
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