Docket: 2011-4061(IT)
BETWEEN:
HAMID SALARI KAMANGAR,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Motion
heard on November 26, 2013, at Windsor, Ontario
Before: The Honourable
Justice Valerie Miller
Appearances:
|
Agent for the Applicant:
|
Alexander
R. Menzies
|
|
Counsel for the Respondent:
|
Ryan Gellings
|
____________________________________________________________________
ORDER
The Applicant’s motion to reopen court file
2011-4061(IT)APP and, to extend the time for filing an appeal for his 2005 and
2006 taxation years, is dismissed.
Signed at Ottawa, Canada, this 4th day of
December 2013.
“V.A. Miller”
Citation: 2013TCC385
Date: 20131204
Docket: 2011-4061(IT)
BETWEEN:
HAMID SALARI KAMANGAR,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
V.A. Miller J.
[1]
Mr. Kamangar has
brought a motion in which he seeks an Order to:
(a)
Reopen court file
2011-4061(IT)APP; and,
(b)
Extend the time for
filing an appeal for his 2005 and 2006 taxation years, if required.
[2]
I will refer to Mr.
Kamangar as the Applicant in this motion.
[3]
The grounds for the
motion were that:
(a)
Court file
2011-4061(IT)APP was closed administratively without notice to the Applicant;
(b)
There was an error in
communication;
(c)
The Canada Revenue
Agency (“CRA”) erred in its reassessment of the Applicant’s 2005 and 2006
taxation years;
(d)
The Applicant always
intended to appeal CRA’s decision.
[4]
The Applicant did not appear at the hearing of this motion. He was
represented by Mr. Menzies, CA, CPA, who has been his agent since December
2011.
[5]
The Applicant filed his affidavit
in which he explained the circumstances surrounding his failure to file an
appeal for his 2005 and 2006 years within the time limited by the Income Tax
Act (“ITA”).
Facts
[6]
The Applicant’s 2005
and 2006 taxation years were reassessed on December 4, 2009 and the
reassessments were confirmed by notice dated July 21, 2011. He filed an
application for extension of time to file a notice of appeal on December 23,
2011. Attached to the application was a document entitled “Notice of Appeal”.
The Respondent did not oppose the application and Lamarre J issued an Order
dated February 1, 2012 extending the time within which an appeal may be instituted
for the 2005 and 2006 taxation years. The Order was made conditional on “a
proper Notice of Appeal” being filed with the Court on or before March 12,
2012. It was sent to Mr. Menzies by registered mail on February 2, 2012. There
is no suggestion that Mr. Menzies did not receive the Order.
[7]
Mr. Menzies failed to
respond to the Order and to file a proper Notice of Appeal. The Applicant’s
file with the Court was closed on March 27, 2012.
[8]
The Applicant explained
that when he received the notice of assessment for his 2012 taxation year, he
was alerted to the fact that he still owed amounts from a previous assessment.
That notice of assessment was dated May 2, 2013. On June 21, 2013, Mr. Menzies
wrote to the Court to inquire about the status of the Applicant’s appeal for
his 2005 and 2006 taxation year and he was told that the file was closed.
[9]
Both the Applicant and
Mr. Menzies feel that the Applicant’s right to appeal should not be prejudiced
by mistakes made by Mr. Menzies.
[10]
This motion was filed
with the Court on October 2, 2013.
[11]
It was the Respondent’s
position that the Applicant was previously granted an extension of time to file
his notice of appeal and he missed the Court ordered deadline. With the present
motion, the Applicant is seeking a second extension of time. This application
for extension of time should be dismissed because it was not made within one
year and ninety days after the day on which the notice of confirmation was
mailed to the Applicant. In this case, the motion was filed with the court on October
2, 2013 and the time within which an application for extension of time to
appeal could be allowed expired on October 19, 2012. Counsel relied on the
decision in Moon v R, 2010 TCC 393 to state that once it is found
that the application for extension of time was not made within one year and
ninety days after the date on the notice of confirmation, this court does not
have jurisdiction to extend that time and the question whether it would be just
and equitable to grant an extension may not be raised.
Analysis
[12]
I agree with the
statement of the law made by counsel for the Respondent. However, it is my view
that the Applicant’s motion to reopen court file 2011-4061(IT)APP is
essentially a request to set aside the Order made by Lamarre J. Although there is no section in the Tax Court of Canada Act
(TCCA) that is specifically applicable to the facts of this motion, I
have used the requirements of subsection 18.21(3) of the TCCA as a guide
in making my decision. That provision speaks to the circumstances which the
Court can consider in setting aside an order of dismissal when an appellant
fails to appear at the hearing. That provision reads:
18.21(3) The Court may set aside
an order of dismissal made under subsection (1) where
(a) it would have been unreasonable in all the circumstances for the
appellant to have attended the hearing; and
(b)
the appellant applied to have the order of dismissal set aside as soon as circumstances
permitted the application to be brought but, in any event, not later than one hundred
and eighty days after the day on which the order was mailed to the appellant.
[13]
The circumstance which resulted in
the closure of the Applicant’s file was that his representative did not file a
“proper Notice of Appeal” with the Court within the time period given by the
Court. His representative gave no reason for his failure to file a Notice of
Appeal in accordance with the Order. Likewise, there was no evidence from the
Applicant which showed that he made any inquiries prior to June 2013 to his representative
about the status of his 2005 and 2006 appeal. It was only after he received
notice from the CRA that his refund from his 2012 year was used to reduce his
balance owing from previous assessments that the Applicant asked questions
about the status of his appeal.
[14]
At the hearing, Mr. Menzies stated
that he had attached a notice of appeal to the application for extension of
time. I have reviewed this document and it consists of three sentences. It
contained no relevant facts and Lamarre J considered that it was not a proper
Notice of Appeal. I agree with her decision.
[15]
If I use subsection 18.21(3) of
the TCCA as a guide, the Court will not set aside an order of dismissal
if the request is brought later than one hundred and eighty days after the day
the order was mailed to the appellant. In this case, the motion to have Lamarre
J’s Order set aside was made on October 2, 2013 which is more than 600 days
after the Order was mailed. It is my view that the delay in filing the present
motion was inordinate. It was made more than one and one half years after the
Order was mailed.
[16]
Mr. Menzies complained that the
Court closed the Applicant’s file without notifying the Applicant or him.
However, it is my opinion that the Court did not have to notify the Applicant
before it closed his file as he had not fulfilled a necessary condition of the
Order. Mr. Menzies was made aware that a proper Notice of Appeal had to be
filed with the Court. A
registry officer telephoned him on February 2, 2012 to advise him of Lamarre
J’s decision with respect to the application for extension of time and to
advise him of the condition in the Order. The Order was sent to Mr. Menzies by
registered mail on February 2, 2012. There is no dispute that Mr. Menzies
received the Order.
[17]
It is my view that the Applicant
has not provided a satisfactory explanation that would justify setting aside
the Order in question and reopening his file.
[18]
The motion is dismissed.
Signed at Ottawa, Canada, this 4th
day of December 2013.
“V.A. Miller”
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