Casey v. R, [1999] 2 CTC 2681

Hamlyn T.C.J.:

While the pleadings and the Applicant’s opening submission indicate some confusion, I have concluded what is before the Court is an application for an extension of time for the institution of appeals, pursuant to section 167 of the Income Tax Act (the “Act’).

The Applicant also filed with the application purported Notices of Appeal. The date of filing was January 6, 1998.

The Respondent filed a Reply to the Notice of Appeal but included in paragraph 11 :

It is respectfully submitted that the Appellant’s Appeal for the 1989, 1990 and 199] taxation years ought to be dismissed as the requirements of section 169 of the Act have not been met, namely the Appeal was not instituted within the time required by section 169 of the Act.

The facts are as follows:

• an examination and search of the records shows the Notices of Reassessment respecting the Applicant’s 1989, 1990 and 1991 taxation years were issued and mailed to the Applicant on May 31, 1993;

• on July 19, 1993, the Applicant filed Notices of Objection against the reassessments for the 1989, 1990 and 1991 taxation years; and

° by notification dated August 19, 1994, the Minister of National Revenue (the “Minister”) notified the Applicant that pursuant to subsection 165(3) of the Act, the 1989, 1990 and 1991 reassessments were confirmed.

No Notices of Appeal were filed in respect of the 1989, 1990 or 1991 taxation years within the time limit prescribed by section 169 of the Act.

The Notice of Confirmation dated August 19, 1994 reads in part as follows:

Notices of Objection for taxation years 1989, 1990 and 199]

Your Notices of Objection for the years shown above have been considered and as agreed recently, the assessments are hereby confirmed in accordance with subsection 165(3) of the Income Tax Act.

The Notice of Confirmation was sent to the Applicant with a copy to his agent.

The Applicant’s evidence was to the effect that contrary to the Notice of Confirmation, he had not previously agreed to have the assessment confirmed.

He also presented evidence (a Statement of Account from Revenue Canada, dated December 17, 1997) indicating that Revenue Canada (after the confirmation) was still considering whether an unpaid sum ($30,093.91) related to a Notice of Objection filed on behalf of the Applicant.

The Applicant was represented by an agent throughout the objection stage and up to the filing of the application and the purported appeals. At this hearing he was represented by counsel.

The basis of the Applicant’s argument for the extension of time to file appeals is that notwithstanding the statutory expiration of time to file appeals, the Notice of Confirmation did not represent what he had agreed to. Therefore, the Court should, on estoppel or an inherent equitable basis, set aside time limitations and extend the time to file appeals. The Applicant also asserts there is a fiduciary relationship between the Applicant and Revenue Canada such that this Court could order remedial relief.

Analysis

The relevant provisions read as follows:

167(1) Where no objection to an assessment under section 165, appeal to the Tax Court of Canada under section 169 or request under subsection 245(6) has been made or instituted within the time limited by that provision for doing so, an application may be made to the Tax Court of Canada for an order extending the time within which a notice of objection may be served, an appeal instituted or a request made, 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 of objecting, appealing or making a request and may impose such terms as it deems just.

(5) No order shall be made under subsection (1)

(a) unless the application to extend the time for objecting or appealing, or making the request, as the case may be, 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 or for making the request under subsection 245(6), as the case may be;

(b) if the Tax Court of Canada has previously made an order extending the time for objecting to or appealing from the assessment or making the request, as the case may be; and

(c) unless the Tax Court of Canada is satisfied that

(i) but for the circumstances mentioned in subsection (1) an objection, appeal or request would have been made or instituted within the time otherwise limited by this Act for doing so,

(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 or making the request.

The Notices of Reassessment were dated May 31, 1993. The Notices of Objection were dated July 19, 1993. The Notice of Confirmation was dated August 19, 1994. It is clear upon the evidence that the Applicant received the Notice of Confirmation.

From the facts presented to the Court, there appeared to be a breakdown of communication through to the confirmation stage between the Applicant and his agent. The words of the confirmation on its face are clear. The assessments were confirmed and the Applicant, or his agent on his behalf, had the full statutory time to move against the assessments.

The appeals and application filed on January 6, 1998 were some three years and four months plus after the confirmation. The statutory limitation for the filing of appeals had long since past (section 169).

In conclusion, the Application for the Extension of Time to Appeal was not filed within one year after the expiration of the time limitations established in section 169. Consequently, the Court is without jurisdiction to grant the application, pursuant to subsections 167(1) and (5) of the Act.

Other Headings of Relief Fiduciary Relationship

The Applicant has not adduced any evidence to support the allegation that there was a fiduciary relationship between Revenue Canada and the Applicant such that the Court could order relief. In City Centre Properties Inc. v. R. (1993), 94 D.T.C. 6209 (Fed. T.D.), MacKay J. considered whether Revenue Canada had a fiduciary duty to the taxpayer to make a demand on a bank guarantee prior to its expiration. He stated at page 6219 that:

I do not find that the facts established create any duty that could be considered a fiduciary duty owed by Revenue Canada to Royalty or to the plaintiff. It is true that in Guerin v. The Queen, [1984] 2 S.C.R. 355, the Supreme Court recognized that the category of circumstances giving rise to a fiduciary duty is not closed, but Guerin itself is not authority for more than the possibility of fiduciary duties owed by the Crown to aboriginal peoples. It does not imply that fiduciary duties will be implied in relation to actions by public servants within statutory authority, even where those actions concern management of pension funds for the benefit of pensioners (See Cullie v. Canada (1991), 41 F.T.R. 59 (F.C.T.D.)).

Similarly, the Applicant failed to establish the existence of a fiduciary relationship between Revenue Canada and himself.

Estoppel in Pais

The Applicant’s submission that estoppel in pais is applicable to the Applicant’s case is ill founded. According to Martland J. at pages 939-940 in Canadian Superior Oil Ltd. v. Paddon-Hughes Development Co., [1970] S.C.R. 932 (S.C.C.), three factors must be present in order to apply the principal of estoppel: there must be a representation or conduct which amounts to a representation which is intended to induce a course of conduct on the part of the person to whom the representation was made, the person to whom the representation was made must act or make an omission as a result of that representation and, finally, the act or omission must be to the detriment of the person. The Applicant has not adduced evidence to show that these requirements have been met.

Even if these requirements had been met, the doctrine of estoppel is only applicable to representations of fact not to representations of law. [1]

Any representations by Revenue Canada officials to the effect that a Notice of Appeal did not have to be filed within the time period outlined in section 169 were representations of law to which the doctrine of estoppel does not apply.

Further, estoppel cannot give the Court jurisdiction that is expressly denied by the Act.* [2] Subsection 167(5) clearly states that the Court cannot make an order extending the time in which an appeal can be instituted under subsection 167(1) unless the application is brought within one year of the time limits imposed under section 169. As previously stated, the Application in the instant case was filed outside this period. The Court therefore lacks the jurisdiction to grant the order sought by the Applicant. Estoppel cannot confer the necessary jurisdiction upon the Court, as it has been expressly prohibited by subsection 167(5) of the Act.

Moreover, even if there was some merit to the equitable relief sought, which this Court does not so find, this Court does not have legislative authority to act. The Tax Court of Canada is a statutory Court. Its powers are defined by statute. It does not have the statutory authority to grant the relief requested. [3]

Decision

The application is dismissed.

Application dismissed.