2001-1719(EI)APP
2001-1720(CPP)APP
BETWEEN:
RONALD G. ANDERSON,
Applicant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Applications heard on July 15, 2002, at
Toronto, Ontario, by
The Honourable D.G.H. Bowman
Associate Chief Judge
Appearances
Counsel for the
Applicant: Wayne
Anderson
Counsel for the Respondent: Meghan
Castle
ORDER
It is
ordered that the applications for an extension of time to file
notices of objection under the Employment Insurance Act
and the Canada Pension Plan be dismissed.
Signed at Ottawa, Canada, this 25th day of July 2002.
A.C.J.
Date: 20020725
Dockets: 2001-1719(EI)APP
2001-1720(CPP)APP
BETWEEN:
RONALD G. ANDERSON,
Applicant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR ORDER
Bowman, A.C.J.
[1] These two applications were made
for the purpose of obtaining an extension of time to appeal to
this court from decisions of the Minister of National Revenue
under the Canada Pension Plan (the "CPP")
and the Employment Insurance Act (the
"EIA") that the applicant, Mr. Anderson,
was employed under a contract of service by Manorcore
Construction Inc. ("Manorcore") and that therefore his
earnings were from pensionable and insurable employment.
[2] The applicant finds himself in
something of a procedural tangle and it is my task to see whether
and to what extent he can be extricated.
[3] The evidence has a few gaps in it
but from what I can ascertain it seems the first contact that
Revenue Canada (now CCRA) had with Mr. Anderson was a letter
of October 5, 1999 relating to his 1997 and 1998 income tax
returns in which it was said that he received employment income
in 1997 and 1998 from Manorcore. They asked for no representation
and stated simply that T4 slips would be prepared and sent to
him.
[4] On December 9, 1999, T4 slips
for 1997 and 1998 were sent to Mr. Anderson. They show
income of $7,549.21 and $25,680.83 respectively from Manorcore.
They also show employee's CPP contributions of $212.28
and $812.45, and employee's EI contributions of
$218.93 and $693.38. In the letter accompanying the T4 slips it
is stated that the employee's EI and CPP
contributions are additional income as well as amounts stated to
be unreported employment income. Just how unremitted employees
CPP and EI contributions constitute additional
income is something of a mystery.
[5] It appears from the notice of
objection that on January 28, 2000 he was assessed under the
Income Tax Act for 1997 and 1998 and on April 11,
2000 he filed a notice of objection to the assessments. The
assessments were not put in evidence.
[6] No notification of confirmation or
reassessment has been issued.
[7] While all this was going on
Manorcore was assessed on February 3, 2000 for CPP
and EI contributions. I presume these were assessments
under section 85 of the EIA and section 22 of
the CPP. On March 6, 2000 the appeals division of
CCRA wrote to Mr. Anderson referring to the fact that
Manorcore had appealed. Again, I presume these appeals were under
section 92 of the EIA and section 27.1 of the
CPP.
[8] Also, in the letter of
March 6, 2000 the CCRA asked the applicant for information
that would assist in determining the question of insurable
employment. A questionnaire was enclosed with the letter and it
was completed and returned by Mr. Anderson. The completed
questionnaire was not put in evidence.
[9] On May 16, 2000 CCRA wrote to
Mr. Anderson and informed him that it had been decided to
confirm the assessments of Manorcore. The letter also stated that
he had 90 days to appeal to the Tax Court of Canada from the
decision.
[10] Section 103(1) of the EIA
reads:
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 accordance with the Tax Court of
Canada Act and the applicable rules of court made thereunder
within 90 days after the decision is communicated to the
Commission or the person, or within such longer time as the Court
allows on application made to it within 90 days after the
expiration of those 90 days.
[11] Subsection 28(1) of the CPP
reads:
A person affected by a decision on an appeal to the Minister
under section 27 or 27.1, or the person's representative,
may, within 90 days after the decision is communicated to the
person, or within any longer time that the Tax Court of Canada on
application made to it within 90 days after the expiration of
those 90 days allows, appeal from the decision to that Court in
accordance with the Tax Court of Canada Act and the
applicable rules of court made thereunder.
[12] The applicant took the letter of
May 16, 2000 to the St. Catharines District Office of
the CCRA. He was told that he did not need to do anything because
he had already filed an objection to the assessments.
Subsequently he was told he should apply for an extension of
time. He filed his application in this court on May 11,
2001, well beyond the time limit specified in
subsection 103(1) of the EIA and
subsection 28(1) of the CPP. If what he seeks is an
extension of time for appealing the Minister's decision under
the CPP or the EIA in respect of the appeals of
Manorcore I cannot help him. His counsel argued that this court
has an inherent jurisdiction to extend the time beyond that
permitted under the CPP and the EIA because
Mr. Anderson had not been given a hearing. This, it is
contended, is contrary to the principles of natural justice and
in violation of Mr. Anderson's rights under the
Charter. I do not think these arguments really are of much
help nor do I think the matter has to be elevated to the level of
invoking the Charter. Whatever inherent jurisdiction this
court may have it does not extend to ignoring the time limits for
appealing set out in the CPP and the EIA. Moreover
he was not denied a hearing. The letter of May 16, 2000 told
him he could appeal to the Tax Court of Canada and based on
advice he received from the CCRA he did not do so.
[13] This entire area of the position of
intervenors or possible intervenors in EIA and CPP
appeals is murky and requires clarification and this application
brings the matter into relief. In the run-of-the-mill
EIA or CPP appeal third parties who may be affected
are informed of the Minister's decision and are invited to
participate. If the appellant is an employer or alleged employer
the employees are informed of the decision and are invited to
participate. If the appellant is an employee the employer is
entitled to intervene. There is no particular consensus that I
have been able to discern whether an intervenor becomes a party
who acquires a status that would permit him or her to prosecute
an appeal irrespective of any consent judgment or discontinuance
in the appellant's case. The CPP and the EIA
accord to persons affected by the Minister's decision certain
rights. The decision of the Federal Court of Appeal in A.G.
Canada v. Blais, 64 N.R. 378, sheds very little
light on the question.
[14] In this case the applicant,
Mr. Anderson, had a right to appeal to the Tax Court of
Canada under section 103 of the EIA and
section 28 of the CPP. He did not do so. However the
Minister has issued assessments for 1997 and 1998 under the
Income Tax Act (the "ITA"). It is
interesting that neither the ITA nor the EIA nor
the CPP contains any mechanism for assessing employees for
employee contributions under the CPP or the EIA.
Section 85 of the EIA permits the Minister to assess
an employer for amounts payable by the employer under the
EIA and this would presumably include the employee's
premiums under section 67 and the employer's premiums
under section 68 both of which are payable by the employer
to the Receiver General under paragraph 82(1)(b).
Substantially the same statutory scheme applies with respect to
the CPP and it is found in sections 21 and 22 of the
CPP. Also section 32 provides for the assessment of
contributions on self-employed earnings.
[15] Mr. Anderson's main concern is
not the EIA and CPP contributions which are
relatively small. It is the amount added to his income as
employment income by the assessments for 1997 and 1998. His
position is that the amounts were not employment income but
rather were business income and that he has expenses to offset
them.
[16] He is in my opinion completely
protected in this regard. He has filed a valid objection to those
income tax assessments. The Minister has not responded to his
objection and since 90 days have elapsed since the filing of
the objection he has a clear right to appeal to this court from
those assessments under paragraph 169(1)(b) of the
ITA. His failure to appeal to this court from the
Minister's decision on Manorcore's appeal does not
constitute a bar to his right of appeal from the assessments
under the ITA. No principle of estoppel, waiver, laches,
acquiescence or any other principle of law of which I am aware
operates to deprive him of his clear statutory right of appeal
and in such an appeal he will be entitled to challenge the
quantum and nature of the amounts included in his income as
employment income. If he is successful in having the income tax
assessments vacated or varied this will obviously affect the
EIA and CPP contributions, if any, payable by him
and they can be dealt with in any subsequent assessments.
[17] The applications to extend the time for
appealing from the Minister's decisions under the EIA
and CPP are dismissed.
Signed at Ottawa, Canada, this 25th day of July 2002.
A.C.J.
COURT FILE
NOS.:
2001-1719(EI)APP, 2001-1720(CPP)APP
STYLE OF
CAUSE:
Between Ronald G. Anderson and
The Minister of National Revenue
PLACE OF
HEARING:
Toronto, Ontario
DATE OF
HEARING:
July 15, 2002
REASONS FOR ORDER
BY:
The Honourable D.G.H. Bowman
Associate Chief Judge
DATE OF
ORDER:
July 25, 2002
APPEARANCES:
Counsel for the
Applicant: D.
Wayne Lalonde, Esq.
Counsel for the Respondent: Meghan
Castle
COUNSEL OF RECORD:
For the Applicant:
Name:
D. Wayne Lalonde, Esq.
Firm:
Toronto, Ontario
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
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