Date:
20021018
Docket:
2002-3203-IT-APP
BETWEEN:
PAUL
MARTEK,
Applicant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Reasons
for Order
Lamarre
Proulx, J.T.C.C.
[1]
This is an application for an extension of the
time within which the Applicant may file with this Court a Notice
of Appeal in respect of a reassessment confirmed by the Minister
of National Revenue (the "Minister") on March 5,
2002.
[2]
The Notice of Reassessment is dated February
27, 1997 and is for the 1993 taxation year. The Applicant
filed a Notice of Objection with the Minister on May 27, 1997. On
March 5, 2002, the Minister notified the Applicant by registered
mail that the reassessment was confirmed.
[3]
No appeal was filed with this Court within the time prescribed by
paragraph 169(1) of the Income Tax Act (the
"Act") for instituting an appeal, which expired
on June 3, 2002. An
application for an extension of time was filed with this Court on
August 22, 2002. It was signed by
Mr. Denis E. Bélanger and read as
follows:
...
I HEREBY apply for an
order extending the time within which an appeal may be
instituted. I am referring the 1993 taxation year and the
decision following the case law Richard McKeown
(2001 DTC 5111).
This contributor is
in the process of moving and did not acknowledge receipt of his
registered mail. I have, today, received by fax, a copy of the
refusal letter date March 18, 2002. Also, please note that
Revenue Quebec has proceeded to cease his salary at Air Canada.
Your acceptance in this matter would be greatly appreciated and
consequent to this contributor's good faith.
Date: August 9,
2002
Denis E. Bélanger
...
[4]
The Applicant and Mr. Bélanger
testified.
[5]
The Applicant is an electrical engineer. He
stated that he did not work for Air Canada, that his salary had
not been garnisheed and that his address had not changed in some
time. All this was completely at odds with what had been declared
in the above application.
[6]
The application was identical to that made by
the Applicant's wife, Kendra Hayden, which had not been
opposed by the Respondent and which this Court granted without a
hearing, as is its practice.
[7]
The Applicant wondered why, in the case of his
wife, the application was not opposed and why it was in his own
case. The Respondent's representative could not give an
answer. He showed, however, that the applications were not filed
on the same date and suggested that this may have been a factor
in the Minister's decision not to oppose
Ms. Hayden's application. Hers was filed on
July 31, 2002 while Mr. Martek's was filed on
August 20, 2002. There is no doubt that consistency in
administrative decisions is a desirable goal. However, as the
Court told the Applicant, it was his application that was before
the Court and not his wife's.
[8]
The Applicant told the Court that he was not
aware that he had received his Notice of Reassessment by
registered mail. He explained that his wife picked up the two
registered letters at the post office and put his in the
glove compartment of her car. She forgot about it until the
Applicant received another document from the Minister by regular
mail. The Applicant stated that he faxed this document to
Mr. Bélanger. This document was not produced by
either the Applicant or Mr. Bélanger.
[9]
The Respondent's representative produced
as Exhibit R-1 Ms. Hayden's Notice of Confirmation.
It bore the same date as the one for the Applicant, that is,
March 5, 2002.
[10] Mr.
Bélanger explained that he used a precedent for the
applications.
[11]
The Applicant argued that the Notice of
Confirmation got lost somehow, that the application was filed not
very long after the expiry of the time for appealing, that he did
not need to read the application and that he trusted
Mr. Bélanger, who drafted and filed the application
on his behalf.
[12]
The Respondent's representative submitted
that the version of events given by the Applicant was not
plausible. He also submitted that the Applicant showed a lack of
diligence in not reading the application made on his
behalf.
Conclusion
[13]
It is impossible to understand why
Mr. Bélanger sent a version of the facts that was
completely erroneous. Although that conduct is both extremely
annoying and deserving of blame, it will not be the basis of my
decision.
[14]
I base my decision rather on the
Applicant's version of the facts. It is just not credible
that the Applicant's wife would have acted on her own Notice
of Confirmation that she had picked up at the post office at the
same time as she picked up her husband's and that she would
have forgotten to mention to him that there was a document
similar to hers for him in the glove compartment of the
car.
[15] Moreover,
the explanations given by the Applicant as to why he was unable
to act within the prescribed time attributed his inaction to his
wife. However, the Applicant's wife
was not present to confirm the Applicant's story. I may thus
infer that her evidence would not have been helpful to the
Applicant: Lévesque v.
Comeau et al, [1970] S.C.R. 1010,
R. v. Jolivet, [2000] 1 S.C.R. 751.
[16] To
conclude, the evidence has not shown on a balance of
probabilities that the Applicant was unable, within the time
prescribed by paragraph 169(1) of the Act, to act or
to instruct another to act on his behalf as required by
paragraph 167(5) of the Act. The application shall be dismissed.
Signed at Ottawa,
Canada, this 18th day of October 2002.
J.T.C.C.
COURT FILE
NO.:
2002-3203(IT)APP
STYLE OF
CAUSE:
Paul Martek and Her Majesty the Queen
PLACE OF
HEARING:
Montreal, Quebec
DATE OF
HEARING:
October 9, 2002
REASONS FOR
ORDER
BY:
The Hon. Judge Louise Lamarre Proulx
DATE OF
ORDER:
October 18, 2002
APPEARANCES:
For the
Applicant:
The Applicant himself
Agent for
the
Respondent:
Yacine Agnaou, (Student-at-Law)
COUNSEL OF
RECORD:
For the
Applicant:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
APPLICATION
UNDER SECTION 167 OF THE
INCOME
TAX ACT (APPEAL)
2002-3203(IT)APP
BETWEEN:
PAUL
MARTEK,
Applicant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Application
heard on October 9, 2002 at Montreal, Quebec, by
The
Honourable Judge Louise Lamarre Proulx
Appearances
Counsel
for the
Applicant:
The Applicant himself
Counsel
for the
Respondent:
Yacine Agnaou (Student-at-law)
ORDER
Upon application for
an Order extending the time within which an appeal, in respect of
the reassessment of February 27, 1997 for the 1993 taxation year
under the Income Tax Act, may be filed;
The application is dismissed, in accordance with the attached
Reasons for Order.
Signed at
Ottawa, Canada, this 18th day of October 2002.
J.T.C.C.
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