Dubé v. M.N.R., docket 98-643-UI

Date: 19981002

Docket: 98-643-UI

BETWEEN:

SUZANNE DUBÉ,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for order

Prévost, D.J.T.C.C.

[1] At Matane, Quebec, on September 18, 1998 the Court heard an amended motion to dismiss an appeal on the ground that the said appeal was statute-barred and futile since it was not filed within the 90-day time limit specified in s. 103(1) of the Employment Insurance Act, S.C. 1996, c. 23.

[2] The affidavit of the appeals officer Jacques Brosseau dated August 28, 1998 reads as follows:

[TRANSLATION]

I the undersigned, Jacques Brosseau, having an office in the Department of National Revenue, at 305 boul. René-Lévesque Ouest, Montréal, do solemnly state as follows:

1. I am an appeals officer with the Department of National Revenue and, having examined the file of the appellant with this Department, I have personal knowledge of the facts set out below:

(a) by letter dated March 23, 1998 the respondent informed the appellant of his decision on the insurability of her employment with Enseignes R.B. Inc. from June 6 to August 26, 1994, April 24 to July 21, 1995, February 26 to May 24, 1996 and August 12, 1996 to March 21, 1997; a copy of the Minister's decision is attached to this affidavit as Exhibit R-1;

(b) the appellant filed in the Registry of the Tax Court of Canada on June 23, 1998 a notice of appeal with respect to the Minister's notification dated March 23, 1998, as appears from the record of that Court;

(c) all the facts alleged in this affidavit are true.

Appellant's evidence

According to Suzanne Dubé

[3] She received a letter dated August 28, 1997 (Exhibit I-1) from the director of taxation services at Revenue Canada advising her that her employment with Enseignes R.B. Inc. was not insurable for the periods indicated therein.

[4] She subsequently received another letter, dated March 23, 1998 (Exhibit A-2), from the deputy director of appeals at Revenue Canada, also determining that the employment in question was not insurable.

[5] In this second letter, received on March 25, 1998, it was stated that in the event that she disagreed she could appeal to this Court within 90 days of the date of the letter.

[6] She gave the letter advising of the determination (Exhibit A-2) to her spouse René Bouchard to read, and on March 26, 1998 he went to see and consult lawyer Serge Houde about it.

[7] On April 6, 1998 Serge Houde sent the appellant a letter (Exhibit A-3) with a professional mandate and fee agreement, asking her to sign it and send him a $300 fee advance.

[8] She did not want to drop the matter; she wanted to appeal, and she relied on her spouse for any subsequent steps to be taken.

According to René Bouchard

[9] He did read the letter advising of the determination (Exhibit A-2); he took the advice of his counsel, who told him there was a chance they could win, and he decided to appeal.

[10] René Bouchard was very busy; his counsel asked him in the final days of the appeal period if his spouse wanted to appeal, and he answered in the affirmative, sending his counsel a deposit of $300 at about the time of the expiry date. There was no ill intent on René Bouchard's part.

Argument

[11] Counsel for the respondent cited the judgment of the Federal Court of Appeal in Claude Lamarre et al. v. M.N.R. (A-682-97), in which Marceau J.A. wrote for that Court:

There is no question, ever since this Court's decision in Vaillancourt, that the 90-day time limit set by subsection 70(1) of the Unemployment Insurance Act for an appeal from a decision of the Minister is a strict time limit which the Tax Court of Canada is unable to extend.

Nor is there any question, under rule 5 of the Tax Court of Canada Rules of Procedure respecting the Unemployment Insurance Act, that the starting point for the 90-day time limit is the date of the decision in cases such as this, where the decision was communicated by mail to the person affected and there is no evidence to suggest that it was not mailed until later. The applicants tried to argue that this provision of the Tax Court of Canada rules of procedure - which is connected with the unambiguous authority which Parliament granted the Tax Court in 1993 in subsection 20(1) and paragraph 20(1.1)(h.1) of its enabling Act - was ultra vires because it was inconsistent with the Act as it stood in 1990, when the provision was made, assuming the word "communicated" in section 70, standing alone at the time, was intended to mean [TRANSLATION] "made known". However, in order for that position to be tenable, it would be necessary not only to disregard the law as it stood when the challenge was brought in determining whether a provision was ultra vires, but also to overlook paragraph 44(g) of the Interpretation Act, which deems the provision to have been made when the new enabling Act was substituted for the former one. Lastly, to take the position that the making of such a provision would infringe some fundamental right protected by the Canadian Charter of Rights and Freedoms, one would have to suppose that a right of appeal was a natural and absolute right, not just a right which must be granted expressly and, therefore, may be granted conditionally.

One final point to add is that we do not accept counsel's able argument in the alternative that if rule 5 were to be given effect, so too must rule 26.1(1) of the Tax Court of Canada Rules of Procedure respecting the Unemployment Insurance Act, which stops the clock from running during the Christmas recess. The very terms of rule 26.1(1) go against accepting such a contention since they refer to a time limit established under the rules, not by the statute itself. The Interpretation Act governs in the case of a statutory time limit.

[12] Counsel for the respondent added that in accordance with the above-cited decision the motion to dismiss the appeal should be allowed.

According to counsel for the appellant

[13] Section 103(2) of the Employment Insurance Act refers to the Tax Court of Canada Act.

[14] The Rules of the Court respecting employment insurance indicate in s. 3 that those Rules shall liberally construed to secure the just, least expensive and most expeditious determination of every appeal on its merits.

[15] June 21, 1998 was a Sunday and the appeal was filed on Tuesday, June 23, 1998, one day late.

[16] Section 27 of the Rules of the Court respecting employment insurance provides that failure to comply with those Rules shall not render any proceedings void unless the Court so directs.

[17] The appellant is not asking for any favours, but is simply arguing that there was an oversight by her spouse, on whom she relied.

[18] It is true that the Lamarre decision has some impact, but Parliament itself did not specify that the 90-day limit was a strict one.

[19] The Court has a "remedial" power and should exercise it.

[20] In Assurance-chômage : loi et règlement annotés by Pierre-Yves Bourdeau and Claudine Roy (4th ed.), Les Éditions Yvon Blais Inc., it is stated (at p. 387):

[TRANSLATION]

Sections 70(2) and 71(1) of the Act confer on the Tax Court of Canada broad remedial powers. Those powers enable the Court . . . to resolve any dispute of a factual nature and to reverse, affirm or vary the Minister’s determination.
A.G. of Canada v. Kaur, F.C. A-487-93, February 8, 1994.

[21] Parliament has not tied the Court's hands.

[22] Bourdeau and Roy also state, on the same page:

[TRANSLATION]

However, an appeal to the T.C.C. in a case involving the application of s. 3(2)(c)(ii) of the Unemployment Insurance Act is not an appeal in the strict sense of the word and more closely resembles an application for judicial review.

Ferme Émile Richard et Fils v. M.N.R., F.C. A-172-94, December 1, 1994.

[23] The fact that this is not an appeal in the strict sense of the word allows the Court to extend the deadline notwithstanding the Lamarre decision.

According to counsel for the respondent

[24] The intent of the appellant and her spouse matters little and the time limit for appealing is a strict one.

[25] The presumption that the letter advising of the determination was mailed on March 23, 1998 has not been rebutted.

[26] It is the date of sending or mailing, not the date of receipt, that matters.

[27] The Lamarre decision clearly establishes that the right to appeal is a statutory rather than a natural right, and that the appeal deadline is a strict one.

[28] Kaur and Richard may be applied when the appeal is filed in time, but that is not the case here.

Analysis

[29] The appeal obviously was not filed in time, but one day late.

[30] The letter from the director of taxation services is of little consequence: it is the ministerial letter advising of the determination that counts and it clearly indicated that an appeal could be filed in this Court within 90 days of the date of the letter.

[31] The appellant and/or her spouse were negligent in not attending to their affairs on time and must suffer the consequences, even if there was no ill intent on their part.

[32] The Lamarre decision is very clear and the appeal deadline is a strict one.

[33] There was no evidence to suggest that the letter advising of the determination was not sent on the date indicated therein.

[34] It is true that the Rules of the Court respecting employment insurance should be liberally construed, but they cannot defeat the purpose of the Act.

[35] The fact that June 21, 1998 was a Sunday does not affect the conclusion herein.

[36] An oversight may be explainable, but not when the appeal deadline is a strict one as it is here.

[37] It is true that the Act does not state that the appeal deadline is a strict one, but the precedents of the Federal Court of Appeal have established that it is and this Court must follow them.

[38] This Court may possess remedial power in certain circumstances, but not when the appeal deadline has expired.

[39] An appeal to this Court where non-arm's-length dealing is relied on is perhaps not an appeal in the strict sense, but the fact remains that the time limit for that appeal is still a strict one.

[40] It is clear that intent does not count and it is the timely filing of an appeal that matters.

[41] It is indeed the date of sending or mailing that counts.

[42] The Lamarre decision clearly establishes that the right of appeal is not a natural right but a statutory one.

[43] The motion to dismiss the appeal must therefore be allowed.

Signed at Laval, Quebec, this 2nd day of October 1998.

“A. Prévost”

D.J.T.C.C.

[OFFICIAL ENGLISH TRANSLATION]

Translation certified true on this 26th day of May 1999.

Erich Klein, Revisor