Docket: 2005-4024(EI)APP
BETWEEN:
GINO CORMIER,
Applicant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
____________________________________________________________________
Application
heard on February 27, 2006, at Québec, Quebec.
Before: The Honourable Justice
Alain Tardif
Appearances:
|
Counsel
for the Applicant:
|
G.
Marc Henry
|
|
Counsel for the Respondent:
|
Claude
Lamoureux
|
____________________________________________________________________
ORDER
Upon the application under subsection 103(1)
of the Employment Insurance Act for an order extending the time within
which a Notice of Appeal may be filed,
And upon hearing the evidence,
The Court hereby dismisses the application.
Signed at Ottawa, Canada,
this 4th day of July 2006.
"Alain Tardif"
Translation
certified true
on this 5th day of
July 2007.
Brian McCordick,
Translator
Citation: 2006TCC382
Date: 20060704
Docket: 2005-4024(EI)APP
BETWEEN:
GINO CORMIER,
Applicant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR ORDER
Tardif J.
[1] This is an
application for an order extending the time within which a Notice of Appeal may
be filed.
[2] The Applicant
submitted that there is a prima facie case.
[3] Secondly, he
submitted that the Appellant's rights were infringed because he was unable to
assert his rights, as he had never been informed of the decision of the
Minister of National Revenue dated July 6, 2001 (Exhibit I‑4).
[4] He stated that he
was informed of the decision when he was asked, several months after the
decision, to reimburse an overpayment. He was unable to remember the point in
time at which he took the initiative to contact the Respondent.
[5] According to his
testimony, the person with whom he communicated stated that there was no longer
anything he could do and that it would be totally pointless to contact a
lawyer; thus, he did not do anything upon being informed that a decision had
been made.
[6] His counsel stated
that he was given the mandate to represent the Applicant because of a chance
encounter, and that the main reason for his being retained was that he and his
client were both from the Gaspé region.
[7] The evidence
disclosed certain incontestable facts:
·
The
decision is dated July 6, 2001.
·
The
Applicant filed a signed request for review, but failed to provide his
telephone number or his address in the request.
·
Following
the Applicant's request for review, Danielle Chouinard undertook numerous
efforts to contact him, including several attempts to reach him at various
phone numbers, one of which was his cell phone number as provided by the
employer identified in the file. Although she left a message at that
number, it was not responded to (Exhibit I‑2).
[8] Counsel for the
Applicant is pleading a fundamental legal rule: the audi alteram
partem rule. Specifically, he submits that the Appellant was deprived of
the fundamental right to be heard on an important issue that has grave
consequences for him.
[9] In other words, a
decision with serious consequences on his property was rendered in his absence
without his having the opportunity to assert his rights by adducing evidence
that could have led to a decision different from the one with which he is
faced.
[10] The audi alteram
partem rule must not be used to avoid a penalty imposed as a result of a reckless
and careless attitude whereby negligence has fashioned the conduct that led to
the violation of the fundamental right being relied upon.
[11] If a person is concerned
about a consequential decision, and that decision provides for the opportunity
to appeal from it or apply for a review within an allotted time, the person
must obviously avail himself of that right, and is entitled to be heard.
[12] However, this right
must be exercised in accordance with applicable law, procedure and regulations,
in a respectful and diligent manner.
[13] The audi alteram
partem rule simply cannot be admitted or relied upon where the facts show
that the purported violation of the rule stems directly from conduct
characterized by disregard, indifference and obvious carelessness.
[14] In the instant case,
the Applicant expressed and communicated his objection to a decision that has a
significant impact on his property. Afterwards, he did not follow up at all. He
did not provide his address or telephone number, he did not contact the
authorities to find out about the status of his file, and he decided — in
this instance, after several years — to file an application
for leave to appeal from a decision dated July 6, 2001.
[15] After admitting that
his desire to be heard was in reaction to the overpayment reimbursement claim
made after the determination, he was unable to provide the Court with the date
of this intervention.
[16] He also claimed that
he was told it would be pointless to consult with counsel, and that since he
could not afford to retain a lawyer at the time, he had no motivation to
believe otherwise.
[17] These explanations are
particularly unpersuasive, and unquestionably do not explain the unjustified
nonchalance and patent negligence. The audi alteram partem rule
certainly cannot be relied upon in such a context, much less excuse such
carelessness.
[18] The application is
dismissed.
Signed at Ottawa, Canada, this
4th day of July 2006.
"Alain Tardif"
Translation
certified true
on this 5th day of
July 2007.
Brian McCordick,
Translator
CITATION: 2006TCC382
COURT FILE NO.: 2005-4024(EI)APP
STYLE OF CAUSE: GINO CORMIER AND M.N.R.
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: February 27, 2006
REASONS FOR ORDER
BY: The Honourable Justice Alain Tardif
DATE OF ORDER: July 4, 2006
APPEARANCES:
|
Counsel for the Applicant:
|
G. Marc Henry
|
|
|
|
|
Counsel for the Respondent:
|
Claude Lamoureux
|
COUNSEL OF RECORD:
For the
Applicant:
Name: G. Marc Henry
Firm: Quessy,
Henry, St-Hilaire
For the Respondent: John
H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa,
Canada
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