Date:
20020501
Docket:
2001-458-GST-I
BETWEEN:
CALVIN D.
BRUNER,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Reasons
for order
Miller,
J.T.C.C.
[1]
This is a motion brought by the Minister of National Revenue
(the "Minister") in the informal procedure appeal
of Mr. Carl Bruner. In the Respondent's Notice of
Motion, the motion is stated as follows:
1.
That the Appellant provide particulars of the relief that he
seeks from this Court as would be required by Rule 48 and
form 21(1)(a) for a General Procedure case;
and
2.
An Order that, pursuant to section 18.3002 of the Tax
Court of Canada Act, R.S.C. 1985 c. T-2
(the "Act"), upon request of the Attorney
General of Canada, Sections 17.1, 17.2 and 17.4 to 17.8 of
the Act are to apply in respect of the subject appeal in
respect of which sections 18.3003 and 18.3007 to 18.301
would otherwise have applied.
[2]
In the grounds for the motion, the Respondent indicates that the
Attorney General has requested, within the time periods set out
in subsection 18.3002(2) of the Tax Court of Canada
Act (the "Act"), that
sections 17.1, 17.2 and 17.4 to 17.8 apply. In a subsequent
supplementary Affidavit and written submissions, the Respondent
stated:
...
4.
The Notice of Motion contained a statement that the motion was
brought within 60 days after the transmittal of the Notice of
Appeal to the Minister, as required by section 18.3002 of
the Tax Court of Canada Act
(the "Act"). The written submissions filed
with the Notice of Motion, contained the statement that the
motion to have this appeal heard under the Tax Court of
Canada's General Procedure could be brought at any time prior
to the due date for filing the Reply to the Appellant's
Notice of Appeal. These statements were made in reliance upon
Rule 11 of the Tax Court of Canada Rules (General
Procedure) (the "Rules"), which
provides that time does not run between December 21 and
January 7 of each year. Counsel for the Respondent was under
the impression that time limit for filing the motion was the same
as that for filing the reply and therefore the motion could be
filed at any time prior to the due date for filing the Reply to
the Notice of Appeal.
Notice of
Motion, Respondent's Motion Record filed March 7, 2002,
at tab 1 and tab 4 paragraph 12.
Affidavit
of Michael Usher Ezri, sworn on March 21, 2002 at
paragraph 5.
5.
Subsequent to March 7, 2002, counsel for the Respondent
became aware that the computation of time under
section 18.3002 of the Act is subject to different
provisions and is not suspended between December 21 and
January 7. As a result the 60 day period referred to in
section 18.3002 lapsed on March 1, 2002.
Affidavit
of Michael Usher Ezri, sworn on March 21, 2002.
[3]
Pursuant to section 18.3002 of the Act, the
Respondent may bring a motion to move an Informal Procedure
appeal up to a General Procedure appeal within 60 days of
the day the Court Registry transmits a Notice of Appeal to the
Minister. If the Respondent fails to make a request within that
time period, which is the situation before me, then the request
is only to be granted if one of the following applies:
1.
The Court is satisfied that the Attorney General of Canada became
aware of information that justifies making the request after the
60 day period. There was no evidence of such before
me.
2.
The Appellant consents. Clearly, he has not.
or
3.
The Court is satisfied that the request is otherwise reasonable
in the circumstances.
[4]
What is meant by "otherwise reasonable in the
circumstances"? Mr. Bruner contends that the only
circumstances to consider are those that brought about the
failure to make the request on a timely basis. With respect, I
disagree. It must be appreciated that subsection 18.3002(1)
of the Act gives the Respondent the right to bump up an
appeal under the Excise Tax Act from the Informal
Procedure to the General Procedure as a matter of course, if the
Respondent brings the application within the 60 day period; that
is, the Court must grant the request if timely. No reasons need
be given. If the request is not timely, then the onus is on the
Respondent to show why it would be reasonable in the
circumstances to grant the request. It would follow that just the
fact of the delay in making the request should not be
determinative, as the very reason for the provision is because
there has been a delay. Certainly the reason for the delay would
have a bearing as would the length of the delay, though these
should not be the only circumstances to determine the
reasonableness of the request. The reason for the delay is the
first factor I will consider in determining the
reasonableness.
[5]
The Respondent made a mistake in miscalculating the limitation
for bringing a motion to bump up the appeal to the General
Procedure. There is no issue of new information becoming
available. The Respondent knew the difficulties he perceived to
be facing with the Informal Procedure appeal from the moment the
Notice of Appeal was received. Nothing changed thereafter. The
Respondent, though believing to have met the deadline of
March 8, 2002, by filing the motion on March 7, 2002,
did in fact miss the correct deadline by six days. As already
indicated, this is not by itself a circumstance sufficient to
dismiss the Respondent's motion, especially as I am satisfied
there was an intent to file on time. However, it is a
circumstance that leads me to place an onus on the Respondent to
show convincingly that all the other circumstances justify the
bump up to the General Procedure.
[6]
The next circumstance to consider is the length of the
delay - six days. Mr. Bruner was obviously
frustrated by delays in this matter, but I fail to see how a time
period of just six days is devastating to him. This leads to the
factor of timeliness generally. Mr. Bruner claims that
bumping the Informal Procedure to a General Procedure would
further delay the resolution of the Informal Procedure appeal. In
that he is right. While Respondent's counsel stressed the
advantages both the Respondent and the Appellant would gain from
having all the processes of the General Procedure at their
disposal, this certainly did not appear to impress
Mr. Bruner. He believes his good name has been tainted by
the very issuance of the Notice of Assessment and, from his
perspective, the sooner he can deal with that issue, the better.
Though this raises a potential problem as to whether there is an
amount at issue, I do accept Mr. Bruner's legitimate
concern that granting the application could lead to delays on his
personal appeal.
[7]
The next factor to consider is the fact that 1088275 Ontario
Limited, a company wholly owned by Mr. Bruner, appealed by
way of the General Procedure the Minister's Notice of
Decision of September 28, 2001, confirming an assessment of
July 30, 1999. The appeal was filed coincidentally with
Mr. Bruner's Informal Procedure appeal. The facts
surrounding the corporate appeal relate to the very same
transactions as raised in Mr. Bruner's appeal. Indeed,
the Respondent has brought an application in the General
Procedure case for consolidation of that matter with
Mr. Bruner's appeal. That motion was to be heard
subsequent to the decision in the motion before me. While I can
find nothing in the Rules of the Tax Court that prohibits an
Informal Procedure and General Procedure to be heard on common
evidence, it is easy to foresee some practical, though not
necessarily insurmountable, difficulties. To find that it is
reasonable to bump up the Informal Procedure to the General
Procedure, so that the matters can be joined is presumptive. It
presumes an Informal Procedure and General Procedure cannot be
heard on common evidence and it further presumes that an
application for consolidation would necessarily succeed if bumped
up. I give this factor little weight.
[8]
Respondent's counsel emphasized that without moving the
Informal Procedure to the General Procedure, there would be less
likelihood of obtaining clarification of the issues, the very
reason for bringing the second part of this motion. Having read
Mr. Bruner's lengthy appeal, I can appreciate that there
may be some cause for seeking clarification, but Informal
Procedure appeals are seldom as enlightening as they might be.
Mr. Bruner acknowledged in his argument that his objective
in this appeal was not monetary, but was to remove what he
perceived to be a slur against his character by the very issuance
of the Notice of Assessment. He maintained the assessment could
only have been issued when it was if the Minister had determined
Mr. Bruner acted fraudulently or had misrepresented matters.
This is the matter at issue. Respondent's counsel was not
satisfied with this verbal clarification, as it was not contained
in the pleadings, and felt it gave support for the need to bump
up the matter into the General Procedure so an appropriate
written clarification could be obtained. I don't see it that
way. The Informal Procedure is intended to allow the Appellant to
receive an expedient fair hearing, unencumbered by the motions,
cross-motions and technicalities which serve Appellants and
Respondents well in General Procedure hearings. The
Appellant's objective of speedy, but fair justice is balanced
against the protection afforded by such technicalities, and the
balance for many appellants, contrary no doubt to the views of
the legal purists, tips in favour of the expedient Informal
Procedure. I do not accept the Respondent's contention that
the Appellant may be better served in the General Procedure. The
Appellant has his reasons for being in the Informal Procedure and
it is not for the agent of the Crown to determine what is best
for the Appellant. The Respondent is struggling with the Notice
of Appeal, but that is not a circumstance justifying the bump up
to the General Procedure. The Respondent is better aware, after
the hearing of this application, as to the Appellant's
issue.
[9]
Mr. Bruner raises two further circumstances to consider; the
prejudice he would suffer by allowing the application and the
cost he would incur. The latter issue can be dealt with to some
degree by an award of costs, though I appreciate
Mr. Bruner's concern is a legitimate one.
[10] Dealing
with the issue of prejudice to Mr. Bruner, his main
objection appears to be that by bumping up to the General
Procedure, he will lose the advantage of having the facts in his
Notice of Appeal accepted as true. Mr. Bruner's argument
is that since the Respondent has not filed a Reply and has not
brought an application to do so in the Informal Procedure,
Mr. Bruner is entitled to rely on subsection 18.3003(2)
of the Act, which reads:
(2)
The Minister of National Revenue may file a reply to a notice of
appeal after the period referred to in subsection (1) and, where
the Minister does not file the reply within the sixty day period
or within the extension of time consented to by the person who
has brought the appeal or granted by the Court, the allegations
of fact contained in the notice of appeal are presumed to be true
for the purposes of the appeal.
[11] I accept
that the Respondent has not brought such an application to file a
Reply. It was not contained in the Notice of Motion and it was
not argued by Respondent's counsel, who having had this
brought to his attention after the Appellant's argument, then
referred me to the Respondent's written submissions which did
contain a reference to such a request. I am not prepared to
accept that late reference to the written submissions as
constituting an application for extension of time to file a
Reply. This does not preclude the Respondent from making such a
request, as subsection 18.3003(1) of the Act does
allow a request before or after the 60 day period referred to
therein.
[12]
Mr. Bruner is concerned that by bumping into the General
Procedure, there is greater likelihood the facts in his appeal
may be treated differently. In the General Procedure the failure
to file the Reply on a timely basis leads to the presumption that
the facts in the Appellant's appeal are true, though
Rule 44(4) of the Tax Court of Canada Rules (General
Procedure) (the "Rules")
states:
(4)
Subsection 12(3) has no application to this section and the
presumption in subsection (2) is a rebuttable
presumption.
There is no
similar written rule in the Informal Procedure regarding a
rebuttable presumption, though it is my understanding that the
presumption in subsection 18.3003(2) of the Act is
similarly a rebuttable presumption. Mr. Bruner is certainly
justified in believing there must be a distinction, as why else
would there be a need for Rule 44(4). I am satisfied that he
has some cause for feeling he might be prejudiced in this
regard.
[13] Another
circumstance to consider is the magnitude and complexity of the
claim. Mr. Bruner says the amount in issue is nil.
Respondent's counsel says he does not know how much is in
issue, notwithstanding his written submissions that the amount
falls between $7,000 and $50,000 for the purpose of a cost award.
While the Notice of Appeal is lengthy, neither its complexity nor
magnitude justifies a move.
[14]
Respondent's counsel referred me to Oakville Motor Sales
& Leasing Inc. v. Canada, [1996] T.C.J. No. 1450,
although that case does not deal with a delay due to a mistake
but deals with information arising subsequent to the initial
Notice of Appeal, which Judge Bowie found would justify
making a request for an extension of time to file a Reply. There
is no such similar circumstance in this case. Respondent's
counsel also directed me to the Mazzuca v. Silvercreek
Pharmacy Ltd., 56 O.R. (3d) 768 for the proposition that
in procedural requests, the applicant need not show special
circumstances, but should only be refused such an application if
there would be prejudice to the other side. That case dealt with
a very different matter than the one before me. I am not
requiring the Respondent to show special circumstances to obtain
the relief he seeks, but he certainly must show that the
circumstances make his request reasonable.
[15] This is one
of those fine balancing acts where weighing the circumstances in
assessing an issue does not lead to an inevitable conclusion. In
tipping the balance in Mr. Bruner's favour, I revert to
a basic principle, which is what will best ensure that the
interests of justice are not only served but also seen to be
served. In this case, I find that Mr. Bruner drafted an
appropriate, albeit lengthy, Notice of Appeal and elected the
Informal Procedure. He did so for a reason. He has satisfied me
that a bump up to the General Procedure would prove costly, would
cause unnecessary delay, and in his mind, some prejudice to his
case. The Respondent missed, through inadvertence, the deadline
for an automatic bump up to the General Procedure, and has not
filed for an extension of time to Reply. I am not satisfied that
in this Informal Procedure the Respondent needs any more
information from the Notice of Appeal than is contained therein
already. Neither the magnitude, complexity or the coincidental
claim from Mr. Bruner's company are sufficient to push
the balance in the Respondent's favour. The Respondent has
not convincingly satisfied me that the request is otherwise
reasonable in the circumstances. His motion to move this matter
to the General Procedure is dismissed.
[16] With
respect to the Respondent's motion for particulars, I am
reluctant to open the door in Informal Procedures for this type
of motion. The Rules do not require a special form for the
appeal other than it set out in general terms the
reason for the appeal and the facts. This can create challenges
to the Minister, given the more frequent habit of appellants to
provide the skimpiest of information. Mr. Bruner does not
fall into that category. He has filed a lengthy appeal. He has
met the requirements of the Rules. The Minister is aware
of the assessment at issue and is aware of Mr. Bruner's
displeasure. This case needs to move ahead. I see no need for
particulars in this Informal Procedure matter. The
Respondent's motion for particulars is dismissed.
Signed at
Ottawa, Ontario, this 1st day of May, 2002.
J.T.C.C.
COURT FILE
NO.:
2001-4568(GST)I
STYLE OF
CAUSE:
Calvin D. Bruner and The Queen
PLACE OF
HEARING:
Toronto, Ontario
DATE OF
HEARING:
April 24, 2002
REASONS FOR
ORDER
BY:
The Hon. Judge Campbell J. Miller
DATE OF
ORDER:
May 1, 2002
APPEARANCES:
For the
Appellant:
The Appellant himself
Counsel
for the
Respondent:
Roger Leclaire
Michelle Farrell
COUNSEL OF
RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-4568(GST)I
BETWEEN:
CALVIN D.
BRUNER,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Motion heard
on April 24, 2002 at Toronto, Ontario by
the
Honourable Judge Campbell J. Miller
Appearances
For the
Appellant:
The Appellant himself
Counsel
for the
Respondent:
Roger Leclaire
Michelle Farrell
ORDER
Upon motion by the Respondent for an Order that:
1.
Pursuant to section 18.3002 of the Tax Court of Canada
Act the General Procedure set out in sections 17.1, 17.2
and 17.4 to 17.8 inclusive apply; and
2.
The Appellant provide particulars of the relief that he seeks
from this Court as would be required by Rule 48 and
form 21(1)(a) of the Tax Court of Canada Rules
(General Procedure);
And upon reading the Affidavits of Michael Mahoney and
Michael Usher Ezri as filed;
And upon hearing what was alleged by the parties;
It is ordered that the motion be dismissed, in accordance with
the attached Reasons for Order.
Signed at
Ottawa, Canada, this 1st day of May, 2002.
J.T.C.C.
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