Inge Stephens v. Her Majesty the Queen, [1977] CTC 488, 77 DTC 5342

Walsh, J:—Plaintiff applies pursuant to subsection 167(4) of the Income Tax Act for an order extending the time within which an appeal may be instituted by her from a judgment of the Tax Review Board allowing in part her appeal from an assessment for her 1974 taxation year. Plaintiff represented herself and the grounds set out in the affidavit accompanying her motion for an extension of the delay are for the most part irrelevant, dealing with the merits of the decision which she seeks to appeal and with her discussions with officers of the Department. In paragraph 7 of her affidavit she states that her appeal was heard on August 4, 1976 and a “favourable” decision was rendered and in paragraph 8 she states that it did not resolve the basic issues which is why she wishes to appeal. Nothing is said about the delay. Paragraph 1 of her notice of motion states that a statement of claim was filed on April 26, 1977. This evidently refers to her previous proceedings instituted on April 26, 1977 under File No T-1681-77 which were dismissed by judgment of the Honourable Mr Justice Marceau dated August 16, 1977 as having been brought beyond the delays for bringing same. He, however, gave her leave to apply under subsection 167(4) for an extension of the delay to file an appeal. I do not read this as a holding that such an extension should be granted, but merely that she had the right to apply for same, the granting of such leave being within the discretion of the judge hearing such application.

Plaintiff contends that a reassessment made on January 31, 1977, following the decision of the Tax Review Board, which was dated August 12, 1976, was not in conformity with the said decision and it may be that she is under the impression that it is this reassessment which is the subject of the present appeal which she seeks to bring rather than the said decision itself.

Subsection 172(1) of the Income Tax Act provides for an appeal within 120 days from the day on which the Registrar of the Tax Review Board mailed its decision and it is clear that this delay was allowed to expire by plaintiff who does not deny having received the decision.

Subsection 167(4) of the Act reads as follows:

167. (4) 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.

Subsection (5) headed “When order to be made’’ reads as follows:

167. (5) 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.

Plaintiff has failed to fulfil the requirement of subparagraph (c)(i) since no circumstances have been disclosed indicating why the appeal was not brought within the time provided for in the Act, the suggestion that plaintiff was awaiting a reassessment following the decision not being a valid reason for failing to appeal the decision itself if this was desired. Furthermore it was not brought as soon as circumstances permitted it to be brought as required by subparagraph (c)(ii).

When a party is acting as his or her own attorney without benefit of legal advice such person should be given as full and complete consideration as if he or she were represented by attorney. This cannot be extended to holding that by acting for himself or herself he or she has acquired rights or advantages which would not be available to them were they properly represented. Ignorance of the law IS no excuse and statutory provisions limiting the time within which actions or appeals may be brought must be strictly enforced whether the party is represented by attorney or not.

While what has been said above is sufficient to dispose of plaintiff’s present application by dismissing same, subparagraph (c)(iii) (supra) does indicate that one of the matters which the Court should take into consideration is whether there are reasonable grounds for objecting to or appealing from the assessment. This requires at least a look at the assessment and decision of the Tax Review Board, which were not part of the present file so I directed that they be produced. An examination of the decision indicates that there are no reasonable grounds for appealing from it.

Plaintiff has confused the issue by suggesting in court that it is really the reassessment following the decision of the Tax Review Board which she is objecting to, specifically, because she claims the decisions adopted in same will also affect all future taxation years and because it does not properly apply the said decision. If this were the case, then, although the present proceedings which seek leave to appeal the decision of the Tax Review Board itself after expiration of the statutory delays are clearly beyond the delays as the judgment of Mr Justice Marceau found and no valid reason has been given to permit them to be brought outside the delays, it may be that defendant has grounds for appealing the reassessment of January 31, 1977. She apparently made no notice of objection to same and is well beyond the 90-day delay provided in subsection 165(1) of the Act for doing so, but it is possible that there were extenuating circumstances arising from her subsequent discussions with the Department which might perhaps justify an application under subsection 167(1) of the Act to the Tax Review Board for an extension of time within which to make the notice of objection to said reassessment. If in fact an error was made in the reassessment following the decision of the Tax Review Board, as a result of a faulty application of that decision, then plaintiff would be justified in appealing.

ORDER

Plaintiff’s motion for an order extending the time within which an appeal may be made from the judgment of the Tax Review Board is dismissed with costs, without prejudice to her right to apply to the Tax Review Board if she so desires pursuant to subsection 167(1) of the Income Tax Act for an extension of time to object to the reassessment of her income tax for the 1974 taxation year made on January 31, 1977. following the decision of the Tax Review Board of August 12, 1976.