Rolland Fortier v. Minister of National Revenue, [1969] CTC 554, 69 DTC 5354

N OËL, J.:—The respondent, by motion, moves that this Court quash the appellant’s notice of appeal, dated May 15, 1969, by which the latter appealed from an assessment for the year 1964, confirmed by a decision of the Tax Appeal Board, dated January 13, 1969. The respondent moves that the notice of appeal be dismissed on the ground that as the appellant did not comply with the requirements of Sections 60(1) and 98 of the Income Tax Act, he cannot appeal the decision of the Tax Appeal Board before this Court.

The appellant did not, it is alleged, as required by these sections, serve his notice of appeal on the Minister nor file a copy thereof with the Registrar of the Exchequer Court and the Registrar of the Tax Appeal Board within 120 days from the day on which the Registrar of the Tax Appeal Board mailed to the Minister and the taxpayer the decision which is appealed.

The parties admit that the notice of appeal was served on the Minister of National Revenue on May 16, 1969 and that a copy of this notice was filed at the Exchequer Court and at the Tax Appeal Board on May 21, 1969. They also admit that the decision of the Tax Appeal Board was rendered on January 13, 1969 and that on January 14, 1969 the Registrar of the Tax Appeal Board forwarded by registered mail to the Minister, a copy of the decision of the Board in the French language, dismissing the appeal. Another copy in the same language was forwarded on the same date in an envelope addressed as follows :

Mr. Rolland Fortier,

c/o Edgar Levasseur,

45 Rideau Street,

Ottawa, Ontario.

Edgar Levasseur is the agent of the appellant who prepared and presented the latter’s notice of appeal to the Tax Appeal Board and who argued this appeal before this tribunal. This notice of appeal is in two parts, a sheet headed ‘Notice of appeal”, dated June 5, 1968 and another document headed “Exposition of the facts’’ which contains the allegations of facts and the arguments of law which are favourable to the taxpayer’s appeal.

Both of these documents are signed by Mr. Edgar Levasseur, C.A. (a chartered accountant and a law graduate, although he is not a member of the Bar) who states that he is duly authorized for these presents and the exposition of facts contains the address of Mr. Levasseur at 45 Rideau Street, Room 408, Ottawa.

The evidence also discloses that (in accordance with a long practice of the Tax Appeal Board, the latter always sends to the taxpayer after sending the decision, a translation of this decision in one or the other of the official languages of Canada, English or French, whatever is the case) on January 27, 1969, the Registrar of the Tax Appeal Board sent to Mr. Levasseur, for the appellant, an English translation of the decision issued in French and on January 29, 1969, a revised translation of the English translation.

The appellant, Rolland Fortier, in an affidavit of September 12, 1969, states that he never received nor read or even ever saw the Tax Appeal Board decision of January 13, 1969, which was addressed to Mr. Edgar Levasseur, that at the end of April 1969, he was informed of the contents of this decision by Mr. Edgar Levasseur and that he asked him to consult with his solicitor as to the advisability of appealing this decision and that a few days later he instructed his solicitor to appeal the said decision.

One of the appellant’s solicitors, Mr. Bernard Guertin, in an affidavit, stated that his firm was retained by the appellant on or about May 1, 1969 at which time the decision of the Tax Appeal Board and other documents were delivered to his firm in an envelope which was post-marked January 29, 1969 and this date was used in computing the time within which the appeal had to be launched. He further stated that no one in his firm was aware or knew that another envelope. had been mailed from the Tax Appeal Board until July 31, 1969, when Mr. Alban Caron, Q.C., of the Department of Justice, advised by telephone that the appeal had been launched one day too late.

As a matter of fact, and as hereinabove declared and admitted, the notice of appeal was served on the Minister of National Revenue on May 16, 1969, i.e., 122 days after the sending of the decision of the Tax Appeal Board on January 14, 1969 and a copy of this notice was sent to the Minister of National Revenue and to the Tax Appeal Board: on May 21, 1969 which Is 127 days after the decision of the Board.

In the three cases, the appellant did not launch or produce his appeal within 120 days of the sending of the decision of the Board as required by Sections 60(1) and 98(1) and: (2) of the Income Tax Act, which read as follows :

60 (1) The Minister or the: taxpayer may, within 120 days from the day on which the Registrar of the Tax Appeal Board mails the decision on an appeal under section 59 to the Minister and the taxpayer, appeal to the Exchequer Court of Canada.

98 (1) An appeal to the Exchequer Court shall be instituted by serving upon the taxpayer or the Minister, as the case may be, a notice of appeal in duplicate in such form as may be determined by the rules, by filing a copy thereof with the Registrar of the Exchequer Court and, if the appeal is from the Tax Appeal Board, by filing a copy thereof with the Registrar of the Tax Appeal Board.

(2) A notice of appeal shall be served upon the Minister by being sent by registered mail addressed to the Deputy Minister of National Revenue for Taxation at Ottawa and may be served upon the taxpayer either personally or by being sent by registered mail addressed to him at his last- known address.

:/Counsel for the respondent. urges that the name and address of the agent of the taxpayer appear on the notice of appeal before the Board and that the sending of the decision to the taxpayer, care of the agent, is in accordance with the requirements of Section 60(1) and does bind the taxpayer.

It is not possible for me to accept this submission for reasons which will appear hereafter. In the first place, Section 60(1) states clearly that the decision must be mailed to the taxpayer and not to his agent and as the taxpayer’s address appeared clearly in both the notice of appeal and the Exposition of the facts as being the village of Embrun, County of Russell, Province of Ontario, there was no reason (as the taxpayer had not elected domicile at his agent’s residence) to send it to the agent, who had, it is true, represented him before the Tax Appeal Board, but whose mandate had then ceased by the prosecution of the appeal before the Board. As the appeal before this Court was a new suit, a new mandate for the appeal was required, which Levasseur, in any event, not being a member of the Bar, could not accept before this Court. Furthermore, Section 98(2) indicates clearly that a notice of appeal \ may be served upon the taxpayer either personally or by being sent by registered mail addressed to him at his last known address and I cannot see why the decision should not be conveyed in a similar manner.

I must, therefore, for these reasons, dismiss respondent’ S motion: with costs. I am also prompted to adopt such a solution because the sending of the decision to the agent in the circumstances we now know of as well as the forwarding of a translation of the decision caused some confusion in the minds of the taxpayer and his solicitors which led to the late. filing of his notice of appeal.

The parties may, however, for the purpose of avoiding unnecessary costs, consent to the present notice of appeal being used for the purpose of the present appeal without the necessity of sending the decision to the taxpayer, by mail, as required by Section 60(1) of the Act. If there is no consent, however; the Minister of National Revenue ‘shall have to follow the requirements of the Act. , ?