Date: 19980331
Docket: 97-3101-IT-I
BETWEEN:
PAUL DUCLOS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for order
TARDIF J.T.C.C.
[1] I must dispose of the merits of a motion submitted by the
respondent asking the Court to dismiss the appeal on the ground
that it lacks jurisdiction.
[2] I should first note that it would seem difficult to
dismiss an appeal if the Court has no jurisdiction.
[3] At the start of the hearing, the parties asked that the
content of paragraph (b) of the Affidavit, alleging that the
appellant had filed a Notice of Objection with the Minister of
National Revenue on June 25, 1997 against the Notice of
Reassessment dated October 15, 1996, be amended,
substituting June 10, 1997 for June 25, 1997.
[4] In response to the Notice of Reassessment dated
October 15, 1996, the appellant sent a letter
(Exhibit A-1) by registered mail, the content of which
was as follows:
[TRANSLATION]
Verdun
June 10, 1997
Department of National Revenue
500 Place d'Armes
Bureau 1800
Montréal, Quebec
H2Y 2W2
To whom it may concern:
I wish to serve notice of my objection despite my delay, which
is justified personally by my ignorance of the Income Tax
Act. I object to the penalty imposed on me on my 1995 taxes,
with reference to $2,000 of union leave, made for 1995. I was
still waiting on my executive to give me a statement of my leave
and as it never did so I filed my tax return without mentioning
it. For reference, my social insurance number is
233-312-396.
From Paul Duclos
896 De l'Église
Verdun, Que.
H4G 2N2
[5] On October 8, 1997 Revenue Canada replied in a letter
(Exhibit I-2) the content of which was as follows:
[TRANSLATION]
TLA-4(A)
October 8, 1997
Paul Duclos
896 Avenue De l'Église
Verdun, Quebec
H4G 2N5
Montréal District
Office
Appeals Division
Tel.: (514) 283-8004
RE: Notice of Objection postmarked June 10,
1997
The enclosed Notice of Objection cannot be accepted since it
was not filed within the time allowed.
The Income Tax Act requires that your objection be
served no later than the 90th day after the date your Notice of
Assessment (Notice of Determination) was mailed.
However, you may request an extension of time to file your
Notice of Objection.
HOW TO PROCEED
Send the undersigned a letter giving the reasons why your
objection was not filed within the time allowed.
WHEN
Your request should be made as soon as possible, but no later
than one year after the date on which you should have filed
your Notice of Objection.
_________________
Chief of Appeals
[6] On October 17, 1997, only a few days after receipt of
the letter of October 8, 1997, the appellant filed a Notice
of Appeal in this Court (Exhibit I-1) stating the
following:
[TRANSLATION]
October 17, 1997
Tax Court of Canada
500 Place d'Armes
Bureau 1800
Montréal, Quebec
H2Y 2W2
(514) 283-9912
Re: Filing of Notice of Appeal
Dear Sir/Madam:
Further to the letter sent on October 8, 1997
(sent by Revenue Canada) informing me of the reply to my
appeal, I wish to file in writing my Notice of Appeal under
the informal procedure as suggested in the correspondence I
received.
The purpose of this letter is therefore to object to the fact
that I was obliged to pay a fine on taxes owed in
1995.
I work at the Hôtel-Dieu in Montréal and was a
union representative in 1995. Since that time the Syndicat
national des Employés généraux was to bring
itself "into line" so that union representatives would
pay taxes like all workers. Proposals to this effect were made
and adopted at several general meetings (Nov. 1992,
Sept. 1993, Aug. 1995 and May 1996), which means
that the union executive had been given legal instructions to do
so. It was not done. It should also be noted that the
"parent" of the Syndicat national des Employés
généraux de l'Hôtel-Dieu, the CNTU,
had also been instructed to ensure that all its unions were
brought into line. The CNTU also failed to do this.
I am thus faced with a dispute which has dragged on for a long
time and which should have been settled as soon as possible.
Unfortunately, the union executive of the
Hôtel-Dieu de Montréal and the CNTU have not
done their duty and I am left to suffer the consequences.
This letter therefore means that the fine which I have to pay
should be imposed on those really responsible, the Syndicat
national des Employés généraux and the
CNTU.
Please note that I am prepared to pay my tax assessments for
these years. However, I dispute the fine which has been unfairly
imposed. I therefore feel I have been unfairly treated by
everything that has happened and unfortunately it is always the
victim who has to pay . . .
I remain available to answer your questions at any time.
Yours truly,
Paul Duclos
SIN:
[7] The appellant testified and explained the circumstances
surrounding the progress of his case. From his testimony I
concluded that he did fully intend to use and to exhaust all the
means at his disposal to assert the validity of his
arguments.
[8] It was also plain from his testimony that he was not
familiar with the procedure and that he had relied on
representatives of his union confederation. It would certainly
have been better for him to consult someone in a position to give
him proper information by fully explaining the procedure to be
followed. Although relatively straightforward, I think that it
might be difficult for a lay person, especially as this is a
rather unusual procedure.
[9] Doubtless partly for these reasons, Parliament sought to
make the procedure as easy as possible so that taxpayers could
assert their rights.
[10] In the instant case, the content of the appellant's
letter, though imperfect and possibly incomplete, clearly set out
his intention to have his case reviewed, after attempting to
justify his delay on grounds of ignorance. That is how I read the
following passage from Exhibit A-1:
[TRANSLATION]
To whom it may concern:
I wish to serve notice of my objection despite my delay, which
is justified personally by my ignorance of the Income Tax
Act.
[11] The respondent had a duty to decide on the merits of the
application, namely whether it met the requirements of the Act,
but in the circumstances she could not dispose of the case by
concluding that it was not a request for a review. Accepting the
respondent's reasoning would amount to saying that the
respondent could deprive a taxpayer of his or her right of appeal
by a decision ruling that the application was not made in proper
form.
[12] I consider that the content of the handwritten letter
signed by the appellant was certainly not a model of clarity;
nevertheless, it expressed a very clear intention to obtain a
decision on the merits, after pleading ignorance as the reason
for his delay.
[13] In the circumstances, I consider that the respondent had
authority to decide to deny him an extension on the ground that
ignorance is no excuse; however, she could not decide that the
request was not a request for an extension. By reaching this
conclusion the respondent made the situation still more
complicated for the appellant. Although procedure is fundamental,
I think that it should facilitate the assertion of rights, not
impede it.
[14] The respondent should simply have concluded that she was
not granting an extension, thereby clearly indicating to the
appellant that he could appeal the decision.
[15] The respondent criticized the appellant for what she
herself had employed: ambiguity. In my opinion, the ambiguity of
the Department's letter explains the content of the
appellant's letter of October 17.
[16] In the circumstances, I conclude that the letter signed
by the appellant on October 17 was a request for review of
the respondent's decision communicated by letter dated
October 8, 1997 (Exhibit I-2), the effect of
which was to deny the extension requested.
[17] The content of the Department's letter is ambiguous.
The ambiguity may explain, and indeed justify, the fact that the
appellant's notice had to do with the merits rather than the
right to a review.
[18] Consequently, I dismiss the respondent's motion to
quash the appeal and allow the appellant's oral motion for an
extension to entitle him to a review of his case.
[19] Consequently, the Court allows him 60 days to assert
his rights to the review office.
Signed at Ottawa, Canada, March 31, 1998.
Alain Tardif
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 14th day of December
1998.
Kathryn Barnard, Revisor
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