Docket: 2008-939(EI)
BETWEEN:
KMW SERVICES INC.
o/a KMW HEALTH and CRITICAL CARE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
____________________________________________________________________
Motion heard on common evidence with the
motion in
KMW Services Inc. o/a KMW Health and
Critical Care
(2008-940(CPP)), on November 24, 2008 at Toronto, Ontario.
Before: The Honourable
Justice Patrick Boyle
Appearances:
|
Counsel for the Appellant:
|
Yehuda
Levinson
|
|
Counsel for the Respondent:
|
Brandon Siegal
|
____________________________________________________________________
JUDGMENT
UPON motion made by
counsel for the Respondent for a Judgment
to dismiss the appeal;
AND UPON hearing
submissions of the parties;
The
motion is granted and the appeal under the Employment Insurance Act is
dismissed in accordance with
the Reasons herein.
Signed at Toronto,
Ontario, this 28th day of November 2008.
"Patrick Boyle"
Docket: 2008-940(CPP)
BETWEEN:
KMW SERVICES INC.
o/a KMW HEALTH and CRITICAL CARE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
____________________________________________________________________
Motion heard on common evidence with the
motion in
KMW Services Inc. o/a KMW Health and
Critical Care (2008-939(EI)),
on November 24, 2008 at Toronto,
Ontario.
Before: The Honourable Justice Patrick
Boyle
Appearances:
|
Counsel for the
Appellant:
|
Yehuda Levinson
|
|
Counsel for the
Respondent:
|
Brandon Siegal
|
____________________________________________________________________
JUDGMENT
UPON motion made by
counsel for the Respondent for a Judgment
to dismiss the appeal;
AND UPON hearing
submissions of the parties;
The
motion is granted and the appeal under the Canada Pension Plan is dismissed in accordance with the Reasons
herein.
Signed at Toronto, Ontario,
this 28th day of November 2008.
"Patrick Boyle"
Citation: 2008 TCC 654
Date: 20081128
Dockets: 2008-939(EI),
2008-940(CPP)
BETWEEN:
KMW SERVICES INC.
o/a KMW HEALTH and CRITICAL CARE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
(Delivered orally from the Bench on November 28, 2008, in Toronto, Ontario.)
Boyle, J.
[1]
The Crown has brought a
motion to dismiss the Appellant’s Employment Insurance and Canada Pension Plan
appeals on the basis that this Court has no jurisdiction to hear these appeals
because the Minister of National Revenue did not make a decision on an appeal
for the reason that valid administrative appeals were not filed by the
Appellant within the time period required by the legislation.
[2]
The Appellant was
assessed for EI and CPP in 2005. Those assessments have already been the
subject of an application to this Court to late-file an appeal. The
applications were turned down by Justice Bowie in 2007.
Justice Bowie’s reasons speak for themselves but, in essence, he concluded
the Tax Court does not have jurisdiction to extend the time to appeal to this
Court, or to hear an appeal, unless the Appellant has first filed an
administrative appeal with the Minister.
[3]
It is important to note
that the EI and CPP legislation differ materially from the Income Tax Act
as regards late filing applications. Under the Income Tax Act, a taxpayer
has the right to request the Minister to accept a late-filed objection, and the
Minister’s decision can expressly be appealed to this Court. The EI and CPP
legislation have no such express provision. (On the other hand, the Income
Tax Act and the EI and CPP legislation each provide that the Court can
accept a late-filed application for an appeal to the Court. This latter
application is what was before Justice Bowie.)
[4]
Following
Justice Bowie’s decision, the Appellant wrote to the Minister implicitly
requesting that the Minister exercise his discretionary power to issue EI and
CPP assessments as permitted by section 94 of the Employment Insurance
Act and section 27.3 of the Canada Pension Plan to allow the
new administrative appeals filed notwithstanding that they were out of time.
However, the Minister has not done so. The Minister replied to the Appellant’s
request by saying that the new appeals were also out of time and therefore
could not be accepted as administrative appeals.
[5]
Thus, it appears we are
right back where Justice Bowie found himself with respect to the first set
of appeals. However, counsel argues that the Minister’s decision to not accept
the new administrative appeals because they were out of time and to not
exercise his discretionary power to reassess after the time period was itself a
decision on an appeal that can be appealed to this Court.
[6]
Subsection 103(1)
of the EI Act only gives the Tax Court jurisdiction to hear an appeal
from “a decision on an appeal to the Minister under section 91 or 92”.
Unfortunately for the Appellant, its right to appeal to this Court does not
extend to whether or how the Minister exercises his discretionary power under
section 94. Similarly subsection 28(1) of the CPP only gives the
Tax Court jurisdiction to hear an appeal from “a decision on an appeal to the
Minister under section 27 or 27.1”. It does not extend to the Minister’s
discretionary power under section 27.3.
[7]
Administrative appeals
under section 92 of the EI Act and section 27.1 of the CPP
are to be filed within 90 days of the assessment in question. Since that
was not done, there is no decision on an appeal under those sections to bring
before this Court under subsection 103(1) of the EI Act or
subsection 28(1) of the CPP.
[8]
The Minister’s refusal
to exercise his discretion under section 94 of the EI Act or
section 27.3 of the CPP and reassess to give effect to an appeal
notwithstanding that it was not filed within 90 days is not “a decision on
an appeal under section 91 or 92” of the EI Act or “section 27
or 27.1” of the CPP. As such, they are not reviewable by this Court.
This is consistent with the decision of Justice Mogan in this Court’s
decision in Deerhurst Resorts Ltd. v. MNR, 89 DTC 352,
involving the former Unemployment Insurance legislation and the CPP.
[9]
Notwithstanding
Mr. Levinson’s subtle and careful attempt in his new letter to the
Minister and in this Court to try to meld a request to review the Minister’s
exercise or failure to exercise his discretionary power together with a
substantive review of the assessments on the merits, I am allowing the Crown’s
motion to dismiss these appeals.
[10]
I am mindful of the
fact that if Mr. Levinson successfully seeks to have the Minister’s
decision to not exercise his discretionary power reviewed in another court, he
may need to be back to this Court to have the appeal heard on its merits. While
this is clearly neither efficient nor ideal, it is the legislative framework
adopted by Parliament which, unless and until it is changed, has to be
respected. I note that the Canadian Bar Association wrote to the Minister
of Justice earlier this year recommending an extension of the Tax Court’s
jurisdiction to enhance such inefficiencies. That letter is posted on the CBA
website. Unless and until it is acted on, it cannot help this or similarly
situate Canadian taxpayers.
Signed at Toronto, Ontario,
this 28th day of November 2008.
"Patrick Boyle"
CITATION: 2008 TCC 654
COURT FILE NOS.: 2008-939(EI), 2008-940(CPP)
STYLE OF CAUSE: KMW SERVICES INC. o/a KMW HEALTH and CRITICAL CARE v. MNR
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 24, 2008
REASONS FOR JUDGMENT
BY: The Honourable Justice Patrick Boyle
DATE OF JUDGMENT: November 28, 2008
APPEARANCES:
|
Counsel for the
Appellant:
|
Yehuda Levinson
|
|
Counsel for the
Respondent:
|
Brandon Siegal
|
COUNSEL OF RECORD:
For the Appellant:
Name: Yehuda Levinson
Firm: Levinson
& Associates
Toronto, Ontario
For the
Respondent: John H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa,
Canada
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