Collver,
J.:—This
is
an
application
by
the
respondents
occasioned
by
an
administrative
error
by
a
Collections
Investigations
Officer.
The
respondents
seek
relief
from
their
failure
to
make
a
timely
reply
to
the
appellant’s
notice
of
appeal
against
a
substantial
assessment
levied
under
four
Federal
and
Provincial
statutes.
On
January
6,
1989
a
notice
of
assessment
under
the
Income
Tax
Act
of
Canada,
the
Income
Tax
Act
of
British
Columbia,
the
Unemployment
Insurance
Act,
and
the
Canada
Pension
Plan,
alleging
liability
for
$85,830.90
in
unpaid
deductions,
penalties,
and
interest,
payable
by
Kaywood
Industries
Inc.,
was
mailed
to
the
appellant.
The
appellant
is
alleged
to
have
been
a
Director
of
the
debtor
company
at
all
material
times.
The
appellant
mailed
his
notice
of
objection
on
March
31,
1989,
and
filed
his
notice
of
appeal
on
August
3,
1989.
Three
copies
of
the
notice
of
appeal
were
mailed
to
the
Deputy
Minister
of
National
Revenue
on
August
4,
1989,
and
received
at
his
office
on
August
14,
1989.
That
is
when
things
got
off
the
rails.
Apparently,
notices-of
appeal
from
provincial
income
tax
assessments
are
rare.
Denis
McClure,
Section
Head
of
the
Vancouver
Designated
Appeals
Office
of
Revenue
Canada,
Taxation,
deposes
to
seeing
only
one
other
such
appeal
in
his
experience.
Although
Mr.
McClure
did
not
indicate
his
length
of
service,
his
statement
as
to
the
rarity
of
this
procedure
was
not
challenged
at
the
hearing
of
this
application.
Mr.
McClure
described
the
protracted
bureaucratic
course
these
notices
of
appeal
take
before
they
ultimately
reach
the
desk
of
counsel
at
the
Vancouver
Regional
Office
of
the
Department
of
Justice,
for
conduct
of
the
appeal.
This
circuitous
procedure
is
avoided
with
respect
to
appeals
from
federal
income
tax
assessments,
which
are
simply
filed
directly
at
the
Tax
Court
of
Canada,
or
the
Federal
Court,
without
being
served
on
the
Deputy
Minister
of
National
Revenue.
Mr.
McClure
further
deposes
to
receiving
his
first
information
about
this
matter
when
the
appellant's
notice
of
motion
(filed
on
November
2,
1989)
seeking
allowance
of
his
appeal
was
received
at
the
Vancouver
Designated
Appeals
office
on
November
27,
1989.
Frantic
searches
began.
Kenneth
D.
Bergen,
a
Collections
Investigation
Officer
in
the
Vancouver
District
Office
of
Revenue
Canada,
received
the
appellant's
notice
of
appeal,
stapled
to
a
covering
letter
from
the
appellant's
lawyer,
between
August
15,
and
September
1,
1989.
The
mistake
he
then
made
was
not
such
an
unreasonable
one.
Assuming,
incorrectly,
that
the
notice
of
appeal
had
already
been
sent
to
the
Designated
Appeals
office
in
Vancouver,
Mr.
Bergen
treated
the
copies
attached
to
the
appellant's
lawyer's
letter
as
"courtesy"
copies,
and
placed
them
in
his
file.
He
did
not
look
at
them
again
until
December
13,
1989,
when
he
was
working
on
other
collection
matters
involving
the
appellant,
and
realized
that
the
notice
of
appeal
was
the
document
which
Mr.
McClure
had
been
recently
searching
for.
The
surprised
Mr.
Bergen
deposes
to
never
before
seeing
a
copy
of
a
notice
of
appeal
at
his
office
which
had
not
previously
been
sent
to
the
Designated
Appeals
Office.
Note
of
this
much
impresses
the
appellant.
Understandably,
he
takes
the
position
that
having
botched
the
reply
process,
the
respondents
should
not
be
allowed
to
patch
things
up.
I
am
not
convinced
that
that
is
a
tenable
position.
When
the
appellant's
application
to
have
his
appeal
allowed
came
before
the
court
on
December
1,
the
respondents
were
granted
an
adjournment
to
December
15
to
bring
this
application.
Meanwhile,
another
error
had
been
made.
When
the
appellant's
notice
of
motion
was
received
at
the
Tax
Litigation
Section
of
the
Department
of
Justice,
instructions
to
respond
to
the
application
were
given,
but
exceeded.
Through
inadvertence,
a
reply
to
the
notice
of
appeal
was
filed
on
November
30,
and
served
on
the
appellant,
obviously
without
an
order
of
the
court.
Thus
the
respondents'
notice
of
motion
seeks
either
a
declaration
that
the
November
30
service
and
filing
be
deemed
valid,
or
that
in
the
alternative
the
respondents
now
be
allowed
to
serve
and
file
their
reply.
Authority
to
file
a
reply
after
the
allotted
time
is
found
in
section
27
of
the
Act,
which
states,
in
part:
The
Provincial
minister
shall,
within
60
days
from
the
day
the
notice
of
appeal
is
received,
or
within
a
further
time
as
the
court
may
either
before
or
after
the
expiration
of
that
time
allow,
serve
on
the
appellant
and
file
in
the
court
a
reply
to
the
notice
of
appeal
.
.
.
Pursuant
to
long-standing
arrangements,
the
conduct
of
appeals
of
provincial
assessments
is
undertaken
by
the
Federal
Department
of
Justice,
since
such
appeals
are
generally
handled
in
conjunction
with
appeals
from
Federal
assessments,
as
is
the
case
here.
In
support
of
their
respective
positions,
counsel
have
cited
a
number
of
cases
dealing
with
non-compliance,
mainly
with
reference
to
the
provisions
of
the
Income
Tax
Act
of
Canada.
Those
cases
involve
a
variety
of
circumstances
where
leave
to
extend
time
for
filing
was
dealt
with.
There
seem
to
be
no
precedents
arising
out
of
failure
to
comply
with
the
British
Columbia
statute.
Be
that
as
it
may,
it
seems
to
me
the
questions
to
be
answered
are
as
follows:
(1)
Has
the
delay
been
inordinate?
(2)
Has
the
delay
been
satisfactorily
explained?
(3)
Has
an
application
to
address
the
issue
been
made
as
soon
as
possible?
(4)
Has
the
appellant
been
seriously
prejudiced
by
the
delay?
The
delay
here
has
not
been
long.
It
has
been
explained,
much
to
the
embarrassment
of
Mr.
Bergen.
The
application
to
deal
with
it
has
been
prompt.
What
of
prejudice
to
the
appellant?
With
respect,
I
see
none.
A
copy
of
the
improperly
filed
reply
has
been
attached
to
the
affidavit
material
filed
in
support
of
this
application.
It
mentions
the
appellant's
involvement
with
Kaywood
Industries
Inc.
at
the
time
of
the
company's
alleged
failure
to
remit
the
disputed
funds
mentioned
in
the
notice
of
assessment
of
January
6,
1989.
The
Deputy-Minister
has
not
broken
down
the
various
amounts
which
make
up
the
total
liability
alleged
in
the
notice.
However,
it
seems
to
me
that
the
appellant,
as
a
Director
of
the
now
defunct
company,
possesses
special
information
about
its
affairs
which
would,
on
the
basis
of
the
negotiations
which
preceded
the
issuance
of
the
notice,
still
be
available
to
him.
The
notice
refers
to
earlier
assessments
made
in
February
and
June
of
1987.
The
reply
refers
to
the
failure
of
the
company
to
remit
in
late
1986
and
early
1987.
Surely
the
ability
of
the
appellant
to
either
recall
or
accumulate
information
from
this
period
in
the
company's
history
is
unlikely
to
be
significantly
affected
by
reason
of
the
minor
delay
occasioned
by
Mr.
Bergen's
error.
It
may
seem
ironic
that
the
respondents'
actions
were
prompted
solely
by
the
appellant’s
application
to
have
his
appeal
allowed,
by
reason
of
the
inactivity
of
the
respondents.
However,
I
believe
it
would
be
an
unreasonable
exercise
of
my
discretion
to
deny
the
present
application,
particularly
where
I
am
satisfied
that
the
respondents'
error
can
be
satisfactorily
addressed
in
costs.
For
the
above
reasons,
the
application
of
the
respondents
is
allowed,
with
costs
to
the
appellant,
both
in
this
and
his
December
1
application.
The
respondents
will
have
30
days
within
which
to
file
their
reply
to
his
notice
of
appeal.
Application
granted.
Email this Content