Guy
Tremblay
[Translation]:—this
application
was
heard
in
Montreal,
Quebec
on
May
11,
1981.
1.
Point
at
issue
The
question
is
whether
the
Board
has
jurisdiction
to
allow
the
application
by
the
applicant
for
an
extension
of
time
in
which
to
submit
a
notice
of
appeal
to
the
Board.
2.
Facts
In
summary,
the
facts
are
as
follows.
2.01
A
notice
of
assessment
for
the
1974
and
1975
years
was
issued;
the
applicant
failed
to
file
its
notice
of
objection
within
the
legal
time
limits,
and
made
an
application
under
section
167,
cited
below,
for
an
extension
of
time,
which
was
granted
by
judgment
of
the
Board
dated
December
13,
1979
(Exhibit
1-1).
2.02
Following
the
filing
of
the
notice
of
objection,
the
respondent
upheld
the
assessments
by
his
notice
of
confirmation
dated
August
7,
1980.
2.03
It
was
then
decided
to
appeal
to
the
Tax
Review
Board.
The
company’s
auditor
was
asked
to
file
the
appropriate
notice
of
appeal.
2.04
On
February
6,
1981,
the
applicant
had
received
from
the
Department
of
National
Revenue
a
request
for
payment,
and
was
told
by
a
representative
of
the
Department
that
no
notice
of
appeal
had
been
filed
with
the
Board.
Because
of
an
administrative
error,
the
auditor
had
filed
to
file
the
notice
of
appeal.
2.05
The
basis
of
the
appeal
is
that
certain
wages
and
accounts
paid
were
rejected
as
expenses.
The
notice
of
appeal
filed
with
the
application
substantially
explains
the
appellant’s
position.
3.
Act
3.01
Applications
for
extensions
of
time
are
dealt
with
by
section
167
of
the
Income
Tax
Act.
This
section
reads
as
follows:
167.
(1)
Application
to
Review
Board
for
time
extension.
Where
no
objection
to
an
assessment
under
section
165
or
appeal
to
the
Tax
Review
Board
under
section
169
has
been
made
or
instituted
within
the
time
limited
by
section
165
or
169,
as
the
case
may
be,
for
doing
so,
an
application
may
be
made
to
the
Tax
Review
Board
for
an
order
extending
the
time
within
which
a
notice
of
objection
may
be
served
or
an
appeal
instituted
and
the
Board
may,
if
in
its
opinion
the
circumstances
of
the
case
are
such
that
it
would
be
just
and
equitable
to
do
so,
make
an
order
extending
the
time
for
objecting
or
appealing
and
may
impose
such
terms
as
it
deems
just.
(2)
Idem.
The
application
referred
to
in
subsection
(1)
shall
set
forth
the
reasons
why
it
was
not
possible
to
serve
the
notice
of
objection
or
institute
the
appeal
to
the
Board
within
the
time
otherwise
limited
by
this
Act
for
so
doing.
(3)
How
application
made.
An
application
under
subsection
(1)
shall
be
made
by
filing
with
the
Registrar
of
the
Tax
Review
Board
or
by
sending
by
registered
mail
addressed
to
him
at
Ottawa
3
copies
of
the
application
accompanied
by
3
copies
of
a
notice
of
objection
or
notice
of
appeal,
as
the
case
may
be.
(4)
Application
for
time
extension
to
Federal
Court.
Where
no
appeal
to
the
Federal
Court
of
Canada
under
section
172
has
been
instituted
within
the
time
limited
by
that
section,
an
application
may
be
made
to
the
Federal
Court
of
Canada
by
notice
filed
in
the
Court
and
served
on
the
Deputy
Attorney
General
of
Canada
at
least
14
days
before
the
application
is
returnable
for
an
order
extending
the
time
within
which
such
appeal
may
be
instituted
and
the
Court
may,
if
in
its
opinion
the
circumstances
of
the
case
are
such
that
it
would
be
just
and
equitable
to
do
so,
make
an
order
extending
the
time
for
appealing
and
may
impose
such
terms
as
it
deems
just.
(5)
When
order
to
be
made.
No
order
shall
be
made
under
subsection
(1)
or
(4)
(a)
unless
the
application
to
extend
the
time
for
objecting
or
appealing
is
made
within
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;
(b)
if
the
Board
or
Court
has
previously
made
an
order
extending
the
time
for
objecting
to
or
appealing
from
the
assessment;
and
(c)
unless
the
Board
or
Court
is
satisfied
that,
(i)
but
for
the
circumstances
mentioned
in
subsection
(1)
or
(4),
as
the
case
may
be,
an
objection
or
appeal
would
have
been
made
or
taken
within
the
time
otherwise
limited
by
this
Act
for
so
doing,
(ii)
the
application
was
brought
as
soon
as
circumstances
permitted
it
to
be
brought,
and
(iii)
there
are
reasonable
grounds
for
objecting
to
or
appealing
from
the
assessment.
4.
Interpretation
4.01
The
point
raised
by
the
respondent
is
that,
because
of
the
provision
of
paragraph
167(5)(b),
the
board
does
not
have
jurisdiction
to
allow
the
application
made.
Based
on
the
evidence
presented,
a
judgment
was
in
fact
rendered
granting
an
extension
of
time
to
file
the
notice
of
objection
(paragraph
2.01).
Counsel
for
the
applicant
argued
the
contrary,
however,
pointing
out
that
the
word
“and”
at
the
end
of
paragraph
(b)
makes
this
paragraph
subject
to
the
conditions
set
forth
in
paragraph
(c)
following,
and
the
applicant
meets
these
conditions.
A
careful
reading
of
subsection
167(5)
clearly
indicates
that
each
of
the
paragraphs
(a),
(b)
and
(c)
forms
a
whole
separate
from
the
two
others.
The
three
paragraphs
are
disjunctive
and
are
not
subject
to
the
conditions
of
each
other.
If
the
conditions
of
one
paragraph
are
met,
then
no
order
“shall
be”
made
under
subsections
7
and
4.
The
“and”
at
the
end
of
the
next
to
last
paragraph
simply
indicates
that
the
last
paragraph
will
follow.
In
the
Income
Tax
Act
the
legislator
regularly
uses
this
“and”
at
the
conclusion
of
the
next
to
last
subsection
or
paragraph
of
a
section:
see
paragraphs
6(1
)(f),
8(1
)(f),
8(1
)(g),
8(1)(h),
8(1
)(i)
and
so
on.
The
Board
accordingly
concludes
that
the
appellant’s
argument
regarding
the
“and”
is
not
valid.
However,
the
Board
is
of
the
opinion
that
it
has
jurisdiction
to
hear
the
application
and
grant
it.
4.02
The
Board
is
of
the
opinion
that
paragraph
(b),
referred
to
by
counsel
for
the
respondent,
as
worded
can
only
apply
where,
following
an
initial
delay
already
granted
in
a
decision
to
file,
for
example,
a
notice
of
objection,
the
taxpayer
for
one
reason
or
another
does
not
file
the
said
notice
of
objection
within
the
period
fixed
in
the
decision.
If
the
taxpayer,
returning
to
the
Board,
again
requests
another
extension
to
file
the
said
notice
of
objection,
then
the
Board
has
no
jurisdiction
to
grant
a
further
period.
In
the
case
at
bar,
this
is
the
first
time
that
applicant
has
requested
an
extension
of
time
regarding
the
notice
of
appeal.
The
other
application
related
to
the
notice
of
objection.
The
Board
accordingly
has
jurisdiction
and,
because
of
the
evidence
presented,
grants
the
time
requested
and
considers
the
notice
of
appeal
which
was
filed
with
the
application
as
validly
filed
for
the
purposes
of
the
Act.
5.
Conclusion
The
application
is
allowed.
Application
allowed.
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