Date: 19981022
Docket: 98-106-UI
BETWEEN:
FLORENT DUMOULIN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
Archambault, J.T.C.C.
[1] The Minister of National Revenue (Minister) has
brought a motion to dismiss Florent Dumoulin’s appeal from
a decision made by the Minister on October 30, 1997, under the
Employment Insurance Act, S.C. 1996, c. 23
(Act). That decision concerned the insurability of
employment held by Mr. Dumoulin from October 30, 1996, to April
27, 1997. According to the Minister, Mr. Dumoulin’s
appeal is time-barred and moot because the notice of appeal was
not filed within the 90-day time limit set out in subsection
103(1) of the Act. Mr. Dumoulin argues that his
notice of appeal was filed within the required time, since the
prescription period was suspended because the state of his health
made it impossible in fact for him to act.
Facts
[2] The evidence revealed the following. By letter dated
October 30, 1997, the Minister informed Mr. Dumoulin of his
decision on the insurability of Mr. Dumoulin’s
employment. A few weeks earlier, on October 5, 1997,
Mr. Dumoulin had gone into cardiovascular arrest
(CVA), which had led to his immediate hospitalization at
the St-Jérôme hospital. The CVA is alleged to have
caused complete paralysis on Mr. Dumoulin’s right side as
well as speech loss. Mr. Dumoulin stayed in the hospital
until November 14, 1997. He was then transferred to a
rehabilitation centre in Ste-Thérèse-de-Blainville
(the town in which he lives), where he remained until February
14, 1998. As of that date, he carried on with his rehabilitation
program but was able to go home at night.
[3] Mr. Dumoulin described the state of his health during the
first phase of his hospitalization at the St-Jérôme
hospital as follows:
[TRANSLATION]
A. On October 5, I went into CVA.
Q. What does “CVA” refer to?
A. Complete paralysis of the right side, speech and limbs.
Q. And do you remember when you were hospitalized?
A. On October 5, 1997.
Q. And you stayed in the hospital in intensive care, I
imagine?
A. Until November 14, 1997.
Q. Until that time, what could you do physically?
A. Absolutely nothing.
Q. What do you mean by that?
A. I wasn’t . . . I couldn’t write, I
couldn’t do anything.
Q. Could you speak?
A. Have a conversation like . . . just like this, yes.
Q. Nothing more?
A. No.
[4] Mr. Dumoulin gave the following description of the
treatment he received during the second phase of his
hospitalization at the rehabilitation centre:
[TRANSLATION]
A. I changed hospitals; they transferred me to a halfway
house.
Q. For rehabilitation?
A. Yes. I stayed there seven days a week, like a hospital.
Q. Yes. You were getting treatment so you could move again and
learn to speak?
A. I was in physiotherapy, occupational therapy, physiotherapy
and speech therapy.
Q. Speech therapy?
A. Yes.
Q. To learn to speak again?
A. Yes.
Q. How was your memory at that point?
A. Well, it was . . . it was like the illness, there was
progress, it was improving.
[5] On about January 25 or 26, 1998, following a visit by one
of the Minister’s investigators to the rehabilitation
centre, Mr. Dumoulin came down himself from the floor where his
room was to the centre’s reception desk to drop off an
envelope containing his notice of appeal dated December 2, 1997.
Someone had typed the notice, and Mr. Dumoulin, with assistance,
had signed it using his right hand. A staff member at the centre
was supposed to mail the envelope. It was postmarked January 30,
1998 and had been so postmarked at the central post office in
Montréal, not the post office in
Ste-Thérèse-de-Blainville, where the
rehabilitation centre was.
Analysis
[6] The first issue to be decided is whether Mr.
Dumoulin’s notice of appeal was filed within the time set
out in the Act. It is helpful to recall that this Court
has jurisdiction to hear and determine appeals only where an Act
of the Parliament of Canada so allows. Subsection 12(1) of the
Tax Court of Canada Act, R.S.C. 1985, c. T-2, states the
following:
The Court has exclusive original jurisdiction to hear and
determine references and appeals to the Court on matters arising
under the Canada Pension Plan, the Cultural Property
Export and Import Act, the Employment Insurance Act,
Part IX of the Excise Tax Act, the Income Tax Act,
the Old Age Security Act and the Petroleum and Gas
Revenue Tax Act, where references or appeals to the Court
are provided for in those Acts.
[Emphasis added.]
[7] Subsection 103(1) of the Act provides that a
decision by the Minister under section 91 of the Act may
be appealed to this Court within 90 days after the decision is
communicated to the person affected. That subsection reads as
follows:
103(1) The Commission or a person affected by a decision on an
appeal to the Minister under section 91 or 92 may appeal from the
decision to the Tax Court of Canada in the prescribed manner
within 90 days after the decision is communicated to the
person, or within such longer time as the Court
may allow on application made to it within those 90
days.
[Emphasis added.]
[8] To determine whether an appeal has been instituted within
the 90-day limit, it is important to ascertain when the decision
under section 91 of the Act was communicated and when the
notice of appeal is deemed to have been filed with the Court.
[9] For the purpose of determining when the Minister’s
decision was communicated, Parliament refers in subsection 103(2)
of the Act to the Tax Court of Canada Act:
103(2) The determination of the time at which a
decision on an appeal to the Minister under section 91 or 92 is
communicated to the Commission or to a person shall be
made in accordance with the rule, if any, made under paragraph
20(1.1)(h.1) of the Tax Court of Canada
Act.
[Emphasis added.]
[10] Paragraph 20(1.1)(h.1) of the Tax Court of
Canada Act authorizes the rules committee of this Court to
make rules prescribing when the Minister’s decision is
communicated to a person:
20(1.1) Without limiting the generality of the foregoing, the
rules committee may make rules
. . .
(h.1) prescribing, for the purposes of . . . subsection
103(1) of the Employment Insurance Act, when a
determination or a decision on an appeal to the Minister of
National Revenue under . . . section 93 of the
Employment Insurance Act, as the case may be, is
communicated to a person.
[11] Subsections 5(1) and 5(2) of the Tax Court of Canada
Rules of Procedure respecting the Employment Insurance
Act(Rules respecting the Employment Insurance
Act) provide that, where a decision is communicated by
mail, the date of communication is the date the decision is
mailed. The wording is clear, and there is no need to rely
on any rule of statutory interpretation. There is no reference
here to the date on which the person affected reads the decision.
Moreover, subsection 5(2) of the said rules establishes a
presumption that the date the Minister’s decision is mailed
is the date specified on the decision:
5(1) An appeal by an appellant from a decision on an appeal to
the Minister shall be instituted within the time period set out
in subsection 103(1) of the Act which is 90 days after
the decision is communicated to the appellant, or within such
longer time as the Court may allow on application made to it
within those 90 days.
(2) Where a decision referred to in subsection (1) is
communicated by mail, the date of communication is the date it
is mailed and, in the absence of evidence to the contrary,
the date of mailing is the date specified on the decision.
[Emphasis added.]
[12] In a recent decision, Lamarre et al. v. Minister of
National Revenue, A-682-97 (May 29, 1998), the
Federal Court of Appeal, per Marceau J.A., stated the
following about the starting point for the computation of the
time limit:
[3] 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.
[Emphasis added.]
[13] In the case at bar, the date on which the
Minister’s decision was mailed was not contested before
this Court. The date the decision was communicated is therefore
October 30, 1997, which is the date specified on the
decision. The doctrine of receipt often applied in tax matters
and put forward by counsel for Mr. Dumoulin, namely that it
is necessary that the person affected have received the
Minister’s decision, is not applicable here. In any event,
the fact that Mr. Dumoulin signed a notice of appeal dated
December 2, 1997, that is, a month after the Minister’s
decision was mailed, confirms that he did in fact receive it.
[14] It must still be determined when Mr. Dumoulin’s
notice of appeal was filed with this Court. Subsection 103(1) of
the Act states that a person may appeal to this Court
“in the prescribed manner”. The rules for
determining when a notice of appeal is considered to have been
filed with the Court are to be found in subsections 5(5) and
5(6) of the Rules respecting the Employment Insurance
Act:
5(5) An appeal shall be instituted by filing in, or mailing
to, a Registry the original of the written appeal referred to in
subsection (1).
(6) If an appeal is instituted by mail, the date that the
appeal is instituted is the date stamped on the envelope at
the post office and, if there is more than one such date, the
date of instituting the appeal shall be deemed to be the earliest
date.
[Emphasis added.]
[15] The evidence showed that the date stamped on the envelope
was January 30, 1998, in other words, the 92nd day after
October 30, 1997.
[16] In Lamarre, supra, the Federal Court of
Appeal confirmed that the time limit set out in subsection 70(1)
of the Unemployment Insurance Act (now subsection 103(1)
of the Act) was a strict time limit that the Tax Court of
Canada could not extend other than by granting an extension
before time had run out.[1] Since Mr. Dumoulin did not file his notice of
appeal within 90 days after the Minister’s decision and as
no application for an extension of time was made to this Court
within that time, his notice of appeal was not filed with the
Court within the time limit set out in subsection 103(1) of the
Act.
[17] Counsel for Mr. Dumoulin did not dispute the fact that
the Minister’s decision was mailed on October 30, 1997, and
that the notice of appeal was filed with the Court on January 30,
1998. However, they argued that the starting point for computing
the time limit was November 14, 1997, the date Mr. Dumoulin
was transferred to a rehabilitation centre in
Ste-Thérèse-de-Blainville.
[18] In their written submission, counsel for Mr. Dumoulin
summarized the facts as follows:
[TRANSLATION]
4. On October 5, 1997, Florent Dumoulin went into
cardiovascular arrest, which led to his immediate hospitalization
in intensive care and caused complete paralysis on his right
side. It is common knowledge that such an incident is a major
disaster for both the individual concerned and his family and
results in the individual being totally unable to function.
5. Thus, for the entire period from October 5 to
November 14, 1997, Florent Dumoulin was in intensive
care at the St-Jérôme hospital. He had only a very
limited awareness of the events going on around him and was
totally unable to move or even to speak.1
6. He was subsequently transferred to the
Drapeau-Deschambeau halfway house and rehabilitation centre
in Ste-Thérèse, where he stayed for the
entire period from November 14, 1997, to February 14, 1998.
____________________
1 The respondent has admitted these facts without
requiring medical certificates to be filed.
[19] In support of their arguments, counsel for Mr. Dumoulin
relied on article 2904 of the Civil Code of
Québec (C.C.), which reads as follows:
Art. 2904. Prescription does not run against persons if
it is impossible in fact for them to act by themselves or to be
represented by others.
[20] Counsel submitted that “the fundamental issue in
this case is whether it is legally tenable to argue that a
prescription period can be set up against an unconscious person
who, having no knowledge that a decision has been sent to him,
cannot assert his rights”.[2] They argued that this Court has
jurisdiction to hear and determine Mr. Dumoulin’s appeal
because Revenue Canada’s decision, which is the
starting point of the time period for appealing to this Court,
could not be validly communicated to Mr. Dumoulin while he
was in intensive care. They further argued that “it is
common knowledge that such an incident is a major disaster for
the individual concerned and results in the individual being
totally unable to function within the meaning of
article 2904 C.C.Q.”[3]
[21] In support of their argument that this Court should apply
the Civil Code’s provisions on prescription to compute the
time limit for appealing set out in section 103 of the
Act, counsel referred to Rule 4 of the Federal Court
Rules, which expressly states that, where any matter arises
not otherwise provided for by any provision in any Act of the
Parliament of Canada or by any general rule or order of that
Court, the practice and procedure may be determined by the Court
by analogy to the practice and procedure in force for similar
proceedings in the courts of that province to which the subject
matter of the proceedings most particularly relates. I must
observe that that rule is not applicable to appeals heard by the
Tax Court of Canada and that there is no similar rule in the
Rules respecting the Employment Insurance Act.[4]
[22] Since there is no rule in the Act, the Tax
Court of Canada Act or the Rules respecting the Employment
Insurance Act, counsel for Mr. Dumoulin argued that the rules
of prescription in the Civil Code of Québec should
apply on a suppletive basis because “the Civil Code lays
down the jus commune applicable in Quebec”.[5]
[23] I am by no means convinced that, in a case such as that
provided for in section 103 of the Act, the rules in
question can apply on a suppletive basis to the computation of
the time limit that a person must meet in order to contest a
decision by the Minister. To begin with, among the authorities
cited by counsel for Mr. Dumoulin in their written
submission, I note the comments made by Gonthier J. of the
Supreme Court of Canada in Doré v. Verdun
(City), [1997] 2 S.C.R. 862, at page 874:
The Civil Code of Québec sets out a number of
guiding legal principles. According to the preliminary provision,
the Code is also the foundation of all other laws dealing with
matters to which the Code relates, although such laws may
complement the Code or make exceptions to it. It is therefore the
foundation of all statutes that draw mainly or incidentally on
civil law concepts. It is also applicable to the
aspects of legal persons established in the public
interest that come under the Civil Code.
[Emphasis added.]
[24] There are also the following comments by Professor
Côté, which were quoted by the Quebec Court of
Appeal in Industrielle-Alliance (L’), Compagnie
d’assurance sur la vie v. Québec (Sous-ministre du
Revenu), [1997] R.J.Q. 2928 (C.A.):
[TRANSLATION]
The Code is the “foundation of all other laws” in
private law; it therefore by its nature provides answers
to private law questions that are not resolved by special
legislation. The extension of the Code’s rules by analogy
is thus an invaluable resource for legal practitioners in Quebec,
although it is a resource that they have tended to ignore in the
past.
[Emphasis added.]
It is important to note the limited scope of these comments:
the Civil Code is the jus commune for matters that come
under the civil law. The case at bar falls under public law. It
involves the application of legislation passed by the Parliament
of Canada that establishes a government benefits scheme for
people who have temporarily lost their jobs. It does not involve
a civil law matter, such as an action in damages brought by an
employee against his employer or a case in which it falls to be
determined whether there is a “contract of
employment” between such persons.[6]
[25] I also do not consider it necessary or appropriate to
apply article 2904 C.C., since Parliament has already
set out the procedure to be followed if an affected person would
like to have the time limit for appealing extended. Subsection
103(1) of the Act provides that a person who requires
additional time can apply to this Court for an extension.
[26] If Mr. Dumoulin needed an additional 15 days because of
his CVA, he could have applied for it, and I am convinced that he
would have obtained it. Mr. Dumoulin never applied for such an
extension, and it was too late to do so on May 1, 1998,
when this motion to dismiss the appeal was brought. In any event,
it does not seem that such an application needed to be made,
since a notice of appeal was prepared about a month after the
Minister’s decision was sent, that is, on December 2, 1997,
if we are to go by the date on that notice of appeal.[7] The failure to file the
notice of appeal within the time set out in the Act could
have been due more to negligence than to the problems caused by
the CVA.
[27] Finally, it should also be asked whether something as
fundamental as the existence of a right of appeal created by a
federal statute can be dependent on the application of provincial
legislation, which may differ depending on the province where the
person affected lives. In such a case, it would be unfair that
all Canadians would not be treated the same. Absent clear
legislation to this effect, I consider it unacceptable that the
exercise of a right of appeal created by a federal statute should
be dependent on provincial law.
[28] In any event, it is not necessary to decide all of these
questions here. Even if counsel for Mr. Dumoulin were right in
arguing that the Civil Code’s provisions must apply on a
suppletive basis, I think that the prescription of the time limit
should not be suspended in the circumstances of this appeal and I
say this for two reasons; the first, and in my opinion the most
important, is factual, while the second is legal.
[29] Contrary to what counsel for Mr. Dumoulin argued, the
evidence adduced before me does not show that Mr. Dumoulin was an
“unconscious person” or that he was
“totally unable . . . to act by himself or by being
represented by others” during the period from October 5
to November 14, 1997. What was
Mr. Dumoulin’s condition on
October 30, 1997, the relevant date for determining
whether the time for appealing had begun to run? As counsel for
the Minister rightly pointed out, the Minister did not admit that
Mr. Dumoulin “had only a very limited awareness
of the events going on around him and was totally unable to move
or even to speak”. He simply allowed Mr. Dumoulin to be
questioned about his health without his medical record having to
be filed.
[30] We know for a certainty that Mr. Dumoulin went into CVA
on October 5, 1997, 25 days before the relevant date.
On October 5, 1997, his right side was paralyzed. The evidence on
the state of his health between October 5 and October 30,
1997, is not clear. Mr. Dumoulin contradicted himself in
describing his condition. At one point, he said that he had
“complete paralysis of the right side, speech and
limbs”. He added that he could not do anything
physically: “I couldn’t write, I couldn’t do
anything”. Immediately after that, he answered the
question “Could you speak?” as follows:
“Have a conversation . . . just like this,
yes”.
[31] As well, he did not say that he remained in intensive
care until November 14, 1997, when he was transferred to a
rehabilitation centre. Rather, he answered a leading question by
his counsel — “And you stayed in the hospital in
intensive care, I imagine?” — as follows:
“Until November 14, 1997”. I am convinced that
Mr. Dumoulin did not properly understand the scope of the
question. I do not think he listened to the second part. Rather,
I believe that he answered only the first part of the question
and that he meant to say that he stayed in the
St-Jérôme hospital until November 14.
[32] In my opinion, it would be very surprising that a patient
could have remained in intensive care at the
St-Jérôme hospital from October 5 until November 14
and then been transferred to a rehabilitation centre right away.
It is much more likely that Mr. Dumoulin was in intensive care
for a few days after going into CVA, while his condition was
unstable, and that he then stayed in a regular hospital room for
a further period so it could be ensured that he was recovering
normally. It seems highly unlikely to me that the
St-Jérôme hospital would have released
Mr. Dumoulin on November 14, 1997, if he had been in such a
state of unconsciousness during the days just before he left that
he was unable to ask someone to file a notice of appeal for
him.
[33] I also do not think that everything Mr. Dumoulin said
should be taken literally. He said on the one hand that he could
not do anything, but on the other hand he admitted that he was
able to speak. He also admitted that his memory came back
gradually. The evidence does not show when his memory became
adequate again or what the state of his memory was on October 30,
1997.
[34] In addition, the evidence shows that a third party typed
a notice of appeal dated December 2, 1997, to be signed by Mr.
Dumoulin. It was Mr. Dumoulin himself who signed the notice
of appeal — although with another person’s assistance
— and who dropped off the envelope containing it at the
rehabilitation centre's reception desk around the end of
January 1998.
[35] The evidence adduced before me tends to support the
position that Mr. Dumoulin’s CVA was not so serious
that he was unconscious on October 30, 1997. The fact
that he could speak before November 14, 1997, that he could make
his own way to the reception desk at the rehabilitation centre to
drop off his envelope in January 1998 and that he appeared before
me alone on May 1, 1998, to contest the Minister’s motion
also suggests that the effects of his CVA diminished fairly
quickly.
[36] In conclusion, the evidence has not shown convincingly
that Mr. Dumoulin was unconscious or that it was impossible in
fact for him to act by being represented by others as of
October 30, 1997.
[37] There is another reason to reject the arguments made by
counsel for Mr. Dumoulin. In the civil law, there is a
doctrine that the rules respecting suspension of prescription do
not apply to a term of forfeiture or a strict time limit, also
known as a predetermined time limit. The Civil Code recognizes a
distinction between a prescription period and a term of
forfeiture. Article 2878 C.C. states the following: “The
court may not, of its own motion, supply the plea of
prescription. However, it shall, of its own motion, declare the
remedy forfeited where so provided by law.” In La
prescription (Montréal, Les Presses de
l’Université de Montréal, 1977), Pierre
Martineau describes predetermined time limits as follows at page
369:
[TRANSLATION]
A predetermined time limit is, in a way, a condition under
which the law grants a right; that right must, on pain of
forfeiture, be exercised within the prescribed time, otherwise it
will be irretrievably extinguished; the holder of the right can
on no account be granted relief from his or her failure to
exercise it for any reason.
At page 370, Pierre Martineau explains the effects of
predetermined time limits as follows:
[TRANSLATION]
Most writers agree that predetermined time limits have the
following effects:
1. The time limit is strict. A person who has allowed
the time limit to expire without exercising his right
automatically forfeits the right. The person cannot be granted
any relief from the forfeiture. The time limit can on no account
be extended.
2. It follows that terms of forfeiture cannot be
suspended. They run against everyone: minors, interdicted
persons, spouses during marriage. The impossibility of acting
cannot be invoked.
3. Nor can such time limits be interrupted. Thus, recognition
of the existence of the right does not prevent the time from
continuing to run.
4. Once the term of forfeiture has expired, it is impossible
to assert one's right either by means of an action or by
invoking an exception; the quae temporalia sunt ad agendum
perpetua sunt ad excipiendum rule (“actions are
temporary but exceptions are perpetual”) does not apply to
terms of forfeiture.
5. As in the case of short prescription periods, the courts
must raise this plea of their own motion. Cases of forfeiture are
cases in which the law denies the action. . . .
[Emphasis added.]
As stated above, the Federal Court of Appeal, in
Lamarre and Vaillancourt, supra, has already
established that the time limit set out in section 103 of the
Act is a strict time limit. As a result, even if the Civil
Code’s provisions were applicable and it had been proved
that it was impossible for Mr. Dumoulin to act, article 2904 C.C.
would be of no help to his case.
[38] In conclusion, the Court grants the Minister’s
motion and quashes Mr. Dumoulin’s appeal.
Signed at Ottawa, Canada, this 22nd day of October 1998.
“Pierre Archambault”
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 31st day of May
1999.
Erich Klein, Revisor
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