Charest v. M.N.R., docket 97-1652-UI

Date: 19981002

Dockets: 97-1652-UI; 97-1653-UI

BETWEEN:

ROBERT CHAREST,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for Judgment

Prévost, D.J.T.C.C.

[1] On September 18, 1998 the Court, sitting at Matane, Quebec, heard two motions to dismiss appeals on the grounds that they were statute-barred and futile since they were not filed within the 90-day deadline specified in s. 103(1) of the Employment Insurance Act, S.C. 1996, c. 23.

[2] The affidavit of August 27, 1998 of Denis Simard, an appeals officer with the Department of National Revenue, reads as follows in both cases:

[TRANSLATION]

I, the undersigned, DENIS SIMARD, having an office at the Department of National Revenue, 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 appellant’s file with this Department, I have personal knowledge of the facts set out below:

A. by letter dated June 12, 1997 the respondent informed the appellant of his decision on the insurability of his employment; 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 September 12, 1997 a Notice of Appeal with respect to the Minister’s notification dated June 12, 1997, as appears from the record of that Court;

C. all the facts alleged in this affidavit are true.

Appellant’s evidence

According to Rolande Charest

[3] It was she who wrote the letters - “notices of appeal” (Exhibit A-1) - dated September 3, 1997 and it was her husband, the appellant, who signed them.

[4] The letters advising of the determinations are dated June 12, 1997 but it is possible that they were not posted until the following day and that they were received four days later.

[5] On September 9, 1997 Rolande Charest sent the said letters (“notices of appeal”) to the deputy director of appeals by fax.

[6] She called Revenue Canada on September 9, 1997 and a secretary told her that her faxes had in fact been received.

[7] On September 12, 1997 appeals officer Gilles Turgeon telephoned her to say that these letters - “notices of appeal” (Exhibit A-1) - had not been sent to the right place and should have been sent to this Court.

[8] He did not tell her that she was already late with her proceedings.

[9] On September 12, 1997 she sent the same letters (Exhibit A-2) by fax to the Registry of the Court in Montréal.

[10] The letters advising of the determinations (Exhibit A-3), dated June 12, 1997, did indicate that in the event that he disagreed the appellant could appeal to this Court within 90 days of the date of mailing, but Rolande Charest thought that [TRANSLATION] “it didn't matter”.

[11] The Court’s acknowledgment of receipt (Exhibit A-4) did indicate that the Notices of Appeal were received at the Registry on September 12, 1997.

Pleadings

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

[13] Counsel for the respondent added that on the basis of that judgment the two motions to dismiss the appeals should be allowed.

[14] According to counsel for the appellant, the instant cases differ from Lamarre.

Also according to counsel for the appellant

[15] The circumstances must be taken into account.

[16] We are dealing here with border line cases and the Court may dismiss the motions to dismiss the appeals.

[17] Section 27 of the Tax Court of Canada Rules (Employment Insurance) reads as follows:

27. (1) Failure to comply with these rules shall not render any proceedings void unless the Court so directs, but such proceedings may be set aside either in whole or in part as irregular and may be amended or otherwise dealt with in such manner and upon such terms as, in the opinion of the Court, the circumstances of the case require.

(2) Where a person makes an application to set aside a proceeding for irregularity, the objections intended to be put forward shall be stated clearly in the application.

(3) The Court may, where and as necessary in the interests of justice, dispense with compliance with any rule at any time.

(4) Where matters are not provided for in these rules, the practice shall be determined by the Court, either on a motion for directions or after the event if no motion is made.

[18] This section authorizes the Court to dismiss the two motions here.

According to counsel for the respondent in reply

[19] The Act is clear and requires no interpretation.

[20] The starting point for the 90-day deadline was indeed June 12, 1997.

[21] The Court would be acting ultra vires if it did not allow the two motions.

[22] The appeals officer Turgeon acted properly.

[23] Section 27, cited above, cannot have the effect of altering the Act.

Analysis

[24] The letters advising of the determinations are clear and the appellant should have known that he had to apply to the Court, not Revenue Canada.

[25] There is no evidence to suggest that the letters advising of the determinations were mailed after June 12, 1997 and Rolande Charest’s assumption cannot be accepted.

[26] The appeals officer acted correctly.

[27] The Lamarre decision is very clear: the time limit for appealing is a strict one and the Court does not have the authority to extend it.

[28] A right of appeal is not a natural and absolute right.

[29] The Court cannot take circumstances into account: it must apply the Act.

[30] Section 27, cited above, cannot have the effect of altering the Act.

[31] The Act may be harsh, but it is the law.

[32] The two motions are accordingly 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 7th day of May 1999.

Erich Klein, Revisor