Brulé,
T.C.J.:—This
is
a
purported
appeal
in
respect
of
the
1980
taxation
year.
When
the
case
was
called
for
hearing
on
May
12,
1987,
in
Toronto,
Ontario,
a
motion
was
made
by
the
respondent
for
an
order
quashing
the
purported
appeal
on
the
grounds
that
it
was
not
instituted
within
the
time
prescribed
by
section
169
of
the
Income
Tax
Act
(the
Act).
Facts
The
respondent
mailed
to
the
appellant
a
notice
of
assessment
indicating
an
unpaid
balance
of
taxes
with
respect
to
the
1980
taxation
year.
The
appellant
filed
a
notice
of
objection
to
the
assessment.
On
August
31,
1982
the
respondent
mailed
a
notice
of
reassessment
to
the
appellant
with
respect
to
the
same
taxation
year.
By
notice
of
appeal
dated
December
22,1982
and
received
on
December
24,
1982,
the
appellant
gave
notice
he
was
appealing
the
reassessment
pertaining
to
the
1980
taxation
year
before
the
then
Tax
Review
Board.
The
respondent
filed
a
reply
to
the
notice
of
appeal
dated
May
27,
1983.
On
May
12,
1987
the
respondent
made
the
present
application
to
the
Court
for
an
order
quashing
the
appeal
on
the
grounds
that
it
was
not
instituted
within
the
time
prescribed
by
section
169
of
the
Act.
Issue
At
issue
in
the
present
motion
is
whether
the
notice
of
appeal
could
be
considered
as
being
filed
within
the
prescribed
period
of
time.
In
order
to
decide
the
issue,
the
effect
on
the
validity
of
the
appeal
of
the
respondent's
filing
of
a
reply
to
the
notice
of
appeal
must
be
determined.
Analysis
Subsection
165(7)
and
section
169
of
the
Act
clearly
set
out
the
time
limit
for
instituting
appeals
to
the
Tax
Court
of
Canada.
The
undisputed
evidence
indicates
the
appellant
filed
his
notice
of
appeal
outside
the
time
limit
prescribed
by
the
Act.
In
such
a
situation
the
Court
is
without
jurisdiction
to
hear
the
purported
appeal.
Facts
similar
to
those
in
the
present
case
can
be
found
in
the
case
of
Peter
Howard
Clifford
Mitchell
v.
M.N.R.,
[1986]
1
C.T.C.
2010;
85
D.T.C.
761.
Taylor,
T.C.J.
granted
the
Minister's
motion
to
quash
the
appeal,
stating
at
page
2011
(D.T.C.
763):
As
I
see
it,
this
Court
does
not
have
a
right
under
any
circumstances
to
reinstate
the
right
of
appeal
for
a
taxpayer
after
that
right
has
expired.
Accordingly,
in
this
situation,
unless
the
notice
of
appeal
dated
March
13,
1984
can
be
declared
by
this
Court
to
be
a
valid
notice
of
appeal,
this
taxpayer's
case
is
lost.
The
motion
of
the
Minister
is
granted
—
this
Court
is
without
jurisdiction
to
hear
the
purported
appeal.
A
similar
conclusion
concerning
the
Court's
lack
of
jurisdiction
in
the
absence
of
a
notice
of
appeal
filed
within
the
prescribed
time
was
reached
by
the
Court
in
the
case
of
D.
Stanley
MacDonell
et
al.
v.
M.N.R.,
[1984]
C.T.C.
2279;
84
D.T.C.
1258.
In
that
decision
Christie,
C.J.T.C.
(as
he
then
was)
stated
at
page
2281
(D.T.C.
1260):
Regardless
of
the
propinquity
of
the
steps
taken
to
appeal
to
the
expiration
of
the
90
day
period,
this
Court
is
without
jurisdiction
to
hear
an
appeal
which
is
not
instituted
before
that
period
has
elapsed.
The
right
of
appeal
granted
by
paragraph
169(a)
is
purely
statutory
and,
if
it
is
to
be
invoked,
the
conditions
pertaining
thereto
must
be
strictly
complied
with.
If
that
is
not
done,
then
this
Court
is
without
jurisdiction.
For
this
Court
to
add
even
one
day
to
the
90
day
period
would
be
tantamount
to
rewriting
paragraph
169(a)
which,
of
course,
it
cannot
do.
There
is
ample
authority
for
my
conclusion:
Horowitz
v.
M.N.R.,
[1962]
C.T.C.
17;
62
D.T.C.
1038,
M.N.R.
v.
Simard,
[1962]
C.T.C.
310;
62
D.T.C.
1192
and
Maclsaac
v.
The
Queen,
[1983]
C.T.C.
213;
83
D.T.C.
5259.
Subsection
167(1)
of
the
Act
does,
of
course,
allow
a
taxpayer
to
make
an
application
to
the
Court
for
an
order
extending
the
time
within
which
an
appeal
may
be
instituted.
Subsection
167(5)
of
the
Act,
however,
unequivocally
states
such
an
application
must
be
made
within
one
year
of
the
time
otherwise
set
out
in
the
Act
to
institute
an
appeal.
The
appellant
did
not
make
such
an
application
and
the
time
for
pursuing
such
a
course
of
action
has
long
since
passed.
Because
of
this
the
Court
would
have
no
jurisdiction
to
grant
an
application
for
extension
of
time
made
by
the
appellant
after
the
expiration
of
the
one-year
period
prescribed
by
paragraph
167(5)(a)
of
the
Act.
Such
was
the
conclusion
reached
by
the
Tax
Review
Board
in
the
case
of
Ronaldo
Ouellet
Ltée
v.
M.N.R.,
[1983]
C.T.C.
2044;
83
D.T.C.
34.
The
filing
by
the
respondent
of
a
reply
to
the
notice
of
appeal
cannot
remedy
the
late
filing
of
the
appeal.
This
does
not
result
in
an
estoppel.
The
respondent's
actions
could
not
change
the
requirements
set
out
in
the
Income
Tax
Act
or
give
effect
to
an
invalid
notice
of
appeal.
I
would
cite
the
words
of
Christie,
C.J.T.C.
(as
he
then
was)
in
Jay
Wollenberg
v.
M.N.R.,
[1984]
C.T.C.
2043
at
2045;
84
D.T.C.
1055
at
1057:
Estoppel
is
incapable
of
putting
aside
or
overriding
the
provisions
of
the
Act
as
enacted
by
Parliament.
There
is
ample
authority
for
this.
I
need
only
refer
to
two
decisions
of
the
Federal
Court
—
Trial
Division
and
the
cases
referred
to
therein;
Stickle
v.
M.N.R.,
[1972]
C.T.C.
210;
72
D.T.C.
6178,
and
Gibbon
v.
The
Queen,
[1977]
C.T.C.
334;
77
D.T.C.
5193.
The
comments
of
Bonner,
J.
in
Lapointe-Fisher
Nursing
Home,
Limited
v.
M.N.R.,
[1986]
1
C.T.C.
2462
at
2465;
86
D.T.C.
1357
at
1360,
with
respect
to
the
effect
of
the
respondent's
consent
to
jurisdiction
in
cases
where
the
appeal
has
not
been
duly
instituted,
may
also
be
applied
to
the
present
case:
I
cannot
construe
that
letter
either
as
any
sort
of
waiver
or
as
a
consent
to
jurisdiction.
Even
if
I
could,
the
position
is
aptly
described
by
the
words
of
Moss,
C.J.O.
in
Re
Port
Arthur
Election
(1906),
13
O.L.R.
17
at
20:
The
Court
must
be
careful
to
see
that
it
does
not
usurp
a
jurisdiction
it
does
not
possess.
The
jurisdiction
it
has
is
wholly
statutory,
and
only
such
as
is
conferred
by
the
statute
can
be
exercised.
For
these
reasons
the
motion
of
the
Minister
is
granted
and
the
purported
appeal
is
quashed.
Motion
granted.
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