MacGuigan,
J.A.:
—
The
motions
judge
allowed
an
extension
of
time
for
appealing
a
decision
of
the
Tax
Court
under
subsection
167(4)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act"),
without
adverting
in
his
written
reasons
to
subsection
167(5)
of
the
Act.
However,
subsection
167(5)
clearly
limits
the
Trial
Division's
power
to
extend
time
for
appeal
to
"one
year
after
the
expiration
of
the
time
otherwise
limited
by
this
Act
for
objecting
to
or
appealing
from
the
assessment
in
respect
of
which
the
application
is
made."
On
the
facts
of
this
case
that
time
would
expire
by
January
20,
1988,
whereas
the
application
for
extension
was
not
made
until
March
30,
1989.
In
our
view
subsection
167(5)
cannot
be
read
to
refer
only
to
direct
appeals
to
the
Trial
Division
from
ministerial
assessments,
as
opposed
to
those
which
come
to
it
via
the
Tax
Court,
based
solely
upon
the
use
in
subsection
167(5)
of
the
single
word
assessment:
"for
objecting
to
or
appealing
from
the
assessment"
[emphasis
added].
Even
on
appeal
from
the
Tax
Court
to
the
Trial
Division,
it
is
still
really
the
assessment
which
is
under
appeal,
rather
than
the
decision
of
the
Tax
Court:
Goldman
v.
M.N.R.,
[1951]
C.T.C.
241;
51
D.T.C.
519
at
247
(D.T.C.
522),
per
Thorson,
P.
This
seems
to
us
evident,
not
only
from
the
wording
of
section
177
of
the
Act,
which
refers
to
the
Trial
Division's
power
to
vacate,
vary,
restore
or
refer
back
"the
assessment,"
but
also
from
the
fact
that
the
proceedings
before
the
Trial
Division
are
in
form
a
trial
de
novo
rather
than
just
an
appeal
from
the
decision
of
the
Tax
Court:
Goldman,
supra
at
246
(D.T.C.
521-22).
There
is
no
factual
foundation
for
an
argument
as
to
estoppel
in
the
present
case.
The
motions
judge
aving
fallen
into
error
of
law,
the
appeal
must
therefore
be
allowed
with
costs
both
here
and
below
and
his
decision
of
April
10,
1989,
set
aside.
Appeal
allowed.
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