Charland v. M.N.R., docket 97-2009-UI

Date: 19980707

Docket: 97-2009-UI

BETWEEN:

FERDINAND CHARLAND,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent,

and

LES AUTOMOBILES SIMARD INC.,

Intervener.

Reasons for Judgment

DUSSAULT, J.T.C.C.

[1] I think that the error of counsel – it is assumed there is an error although there is no evidence of error to date, at least there is no evidence of error before the Court: we do not know what happened and that is all that can be said. I think this is as far as one can go.

[2] The 90-day deadline specified in the Unemployment Insurance Act is a strict deadline and any proceeding brought in the Court after that deadline is not a valid appeal. This has been repeated several times: I can refer you to various decisions. The most important is perhaps the 1992 decision of the Federal Court of Appeal in Vaillancourt. In that decision it is stated:

The Tax Court has no jurisdiction to hear an appeal brought after the expiry of the 90-day appeal period. The deadline is strict and any proceeding begun after it has expired can only be struck out.

[3] This has subsequently been restated a number of times. The deadline is thus really a strict one and it cannot be ignored.

[4] The mailing did not take place on the 12th as indicated on the decision, which under s. 5(2) of the Tax Court of Canada Rules (U.I.) might otherwise be presumed to be the date of mailing. In that provision it is stated that "in the absence of evidence to the contrary, the date of mailing is the date specified on the decision".

[5] In the instant case we have an admission that it was not on the 12th, which is the date specified on the decision, but rather the 13th that it was mailed. The fundamental rule is really that where a decision is communicated by mail, the date of communication is the date on which the decision was mailed. That is clear. When it is communicated by mail the date of communication is the date on which it was mailed. The evidence is that it was the 13th – there was an admission and we also have a document that was submitted, namely the registered mail receipt. So, there is no indication – I have no evidence that it was improperly mailed, that it was mailed to just anyone, and so on. It was mailed to Ferdinand Charland, and I have no evidence that it was not mailed properly: I have the registered mail receipt. I cannot do more than apply the law. That is the date which counts and a party has 90 days from that date to file an appeal. The appeal was registered in the Court on November 19 and that was too late. There is nothing more I can do. As has been repeated a number of times, the Court does not have the choice of extending the deadline or not doing so: it is a strict deadline which must be observed. I am thus obliged to allow the motion to dismiss as the appeal was void from the outset. It is most unfortunate.

[6] I would point out that these provisions will shortly be amended – I do not know when – for future extension applications. Perhaps you are aware of this. Thank you.

Signed at Ottawa, Canada, this 7th day of July 1998.

"P. R. Dussault"

J.T.C.C.

[OFFICIAL ENGLISH TRANSLATION]

Translation certified true on this 17th day of December 1998.

Erich Klein, Revisor