|
Citation: 2003TCC899
|
|
Date: 20031203
|
|
Docket: 2003-2108(EI)APP
|
|
BETWEEN:
|
|
OSMAN ASHMAWY,
|
|
Applicant,
|
|
and
|
|
|
|
THE MINISTER OF NATIONAL REVENUE,
|
|
Respondent.
|
REASONS FOR ORDER
Miller J.
[1] Mr.
Osman Ashmawy is applying for an extension of time to file an appeal with this
Court, from the decision of the Minister of National Revenue (the
"Minister") contained in a letter from Canada Customs and Revenue
Agency ("CCRA") dated June 20, 2002. In that decision, the Minister
determined that Mr. Ashmawy had acquired 210 insurable hours from
February 12, 1996 to March 20, 1996. Mr. Ashmawy's view is that he
acquired 336 hours, as stated by CCRA in their letter of January 9, 2002 to
Mr. Ashmawy. Mr. Ashmawy has been consistent and dogged in his efforts to
resolve this matter, yet by not filing his objection in the appropriate office,
he may have lost his opportunity to be heard.
[2] It
is helpful to provide a chronology of events in Mr. Ashmawy's dispute. By
letter dated January 9, 2002, CCRA indicated to Mr. Ashmawy the following:
We received a request from the Department of Human
Resources Development for a ruling regarding the insurability of your
employment with Red Leaf Taxi Cab Ltd. for the period of February 12,
1996 to March 20, 1996.
. . .
We have determined that you had insurable earnings of
$2548.00 and 6 insurable weeks for the period under review (336 hours).
[3] By
letter dated May 10, 2002,
from a CPP/EI Appeals Officer, Ms. Patricia Anderson, to Human
Resources Development Canada ("HRDC"), the Appeals Officer
confirmed that CCRA had received an appeal from HRDC and indicated they will be
contacting HRDC. Attached to this letter was the same letter, but addressed to
Mr. Ashmawy, unsigned, with a line through the letter and the words
"not required" handwritten on it.
[4] By
letter dated June 20, 2002, a Team Leader, Mr. Ronald Smith, for CPP/EI Appeals
wrote to HRDC in part as follows:
It has been decided that Osman Ashmawy
had acquired 210 insurable hours during the period under review.
Mr. Ashmawy indicated he had no input into that decision. He was away from
Canada from several months, returning July 31, 2002. He received a copy of this
letter on August 27, 2002 while at a Board of Referees. This was the first he
knew of any appeal of CCRA's January 9, 2002 decision.
[5] On
September 21, 2002, Mr. Ashmawy addressed a letter to CCRA at the same office
in Edmonton from which the June 20, 2002 letter was sent. Mr. Ashmawy's
opening sentence was:
Please consider the following facts
as an appeal for the letter which was signed on July 24, 2002 by Ronald Smith.
...
[6] CCRA
responded on September 24, 2002:
This letter concerns your
disagreement with the Ministerial decision dated June 20, 2002.
As you disagree with this decision,
you can appeal to the Tax Court of Canada within 90 days of the date of
the Ministerial decision.
[7] Mr. Ashmawy
continued to deal with CCRA on this and another EI issue throughout the fall of
2002. On January 27, 2003, he wrote again to the Director of CCRA,
Edmonton, appealing the June 20, 2002 decision of Mr. Smith. The letter
was received by CCRA on February 28, 2003. CCRA forwarded this letter to the
Tax Court of Canada. The Tax Court of Canada corresponded with Mr. Ashmawy
by letter of March 6, 2003, indicating that his time to appeal and to
apply for an extension of time to file an appeal had expired, and that the
Court did not appear to have authority to hear the matter.
[8] In
a letter dated May 21, 2003, received June 3, 2003, from Mr. Ashmawy to
the Tax Court of Canada, Mr. Ashmawy states:
Please consider this
letter as a notice of appeal ...
[9] The
relevant statutory provisions are as follows:
Employment Insurance
Act:
91 An appeal to the
Minister from a ruling may be made by the Commission at any time and by any
other person concerned within 90 days after the person is notified of the
ruling.
93(1) The Minister shall notify any
person who may be affected by an appeal of the Minister's intention to decide
the appeal, including the Commission in the case of an appeal of a ruling, and
shall give them an opportunity to provide information and to make
representations to protect their interests, as the circumstances require.
(2) An appeal shall
be addressed to the Assistant Director of Appeals in a Tax Services Office of
the Canada Customs and Revenue Agency and delivered or mailed to that office.
(3) The Minister
shall decide the appeal within a reasonable time after receiving it and shall
notify the affected persons of the decision.
(4) If the Minister
is required to notify a person who may be or is affected by an appeal, the
Minister may have the person notified in such manner as the Minister considers
adequate.
103(1) 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
(1.1) Section 167,
except paragraph 167(5)(a), of the Income Tax Act applies, with such
modifications as the circumstances require, in respect of applications made
under subsection (1).
...
(3) On an appeal, the Tax
Court of Canada
(a) may
vacate, confirm or vary a decision on an appeal under section 91 or an
assessment that is the subject of an appeal under section 92;
(b) in the
case of an appeal under section 92, may refer the matter back to the Minister
for reconsideration and reassessment;
(c) shall
notify in writing the parties to the appeal of its decision; and
(d) give
reasons for its decision but, except where the Court deems it advisable in a
particular case to give reasons in writing, the reasons given by it need not be
in writing.
Income tax Act
167(1) Where an appeal to
the Tax Court of Canada has not been instituted by a taxpayer under section
169 within the time limited by that section for doing so, the taxpayer may make
an application to the Court for an order extending the time within which the
appeal may be instituted and the Court may make an order extending the time for
appealing and may impose such terms as it deems just.
...
(5) No order shall be made under
this section unless
(a) the
application is made within one year after the expiration of the time limited by
section 169 for appealing; and
(b) the taxpayer
demonstrates that
(i) within the
time otherwise limited by section 169 for appealing the taxpayer
(A) was unable to
act or to instruct another to act in the taxpayer's name, or
(B) had a bona fide intention
to appeal,
(ii) given the
reasons set out in the application and the circumstances of the case, it would
be just and equitable to grant the application,
(iii) the
application was made as soon as circumstances permitted, and
(iv) there are reasonable
grounds for the appeal.
Employment Insurance
Rules
5(1) An appeal by an
appellant from a decision on an appeal to the Minister shall be instituted
within the time period set out in subsection 103(1) of the Act which is
90 days after the decision is communicated to the appellant, or within such
longer time as the Court may allow on application made to it within 90 days
after the expiration of those 90 days.
(2) Where a
decision referred to in subsection (1) is communicated by mail, the date of communication
is the date it is mailed and, in the absence of evidence to the contrary, the
date of mailing is the date specified on the decision.
(3) An appeal
referred to in subsection (1) shall be made in writing and set out, in general
terms, the reasons for the appeal and the relevant facts, but no special form
of pleadings is required.
(4) An appeal
shall be instituted by filing the original of the written appeal referred to in
subsection (3) in the Registry.
(5) The written appeal
referred to in subsection (3) shall be filed
(a) by depositing the
original of the written appeal in the Registry;
(b) by mailing the
original of the written appeal to the Registry; or
(c) by
sending a copy of the written appeal by fax or electronic mail to the Registry.
(6) The date of
filing of a written appeal in the Registry is deemed to be the day on which the
written appeal is received by the Registry.
(7) Where a
written appeal is filed in accordance with paragraph 5(c), the party who
instituted the proceeding or that party's counsel or agent shall forthwith send
the original of the written appeal to the Registry.
(8) An appeal may be brought
by a notice in the form set out in Schedule 5.
[10] The 90-day period for Mr. Ashmawy to appeal the June 20, 2002
decision expired on September 18, 2002, if one presumes that the letter
addressed to HRDC, was also mailed to Mr. Ashmawy on that date. No such
letter addressed to Mr. Ashmawy was produced. Mr. Ashmawy's evidence
was that he first saw the June 20, 2002 letter, addressed to HRDC on August 27,
2002. While section 5 of the Employment Insurance Rules stipulates
that the date of communication is the date of mailing, it is implicit that the
letter must be addressed to the person to whom the decision is being communicated.
I have no evidence of such letter to Mr. Ashmawy. I find that the date of
communication in this case can, therefore, only be the date he received a copy
of the letter addressed to HRDC which was not disputed to be August 27, 2002.
[11] The 90-day period for appealing, therefore, ran to November 25, 2002.
Does this help Mr. Ashmawy as far as filing an appeal within 90-day
period? No. He received guidance from CCRA in September, after they received
his "appeal", that the appeal should be directed to the Tax Court of
Canada. Despite ongoing dealings with CCRA which Mr. Ashmawy might have
believed was dealing with the appeal, nothing was filed with the Tax Court of
Canada until early March 2003. This was at the instigation of CCRA, who clearly
were well aware Mr. Ashmawy wanted to appeal this matter.
[12] If I accept that Mr. Ashmawy's appeal period did not expire until
November 25, 2002, then the time within which he could apply to the Court
for an extension of time would be February 23, 2003. Nothing was received by
the Tax Court of Canada until March 3, 2003. Even on this most favourable
reading of the circumstances, Mr. Ashmawy is simply out of time for
bringing this application.
[13] I did not rule immediately on this issue as I was disturbed by the lack
of opportunity Mr. Ashmawy was given to present his position prior to the
Minister's decision of June 20, 2002. Subsection 93(1) clearly stipulates
the Minister shall give Mr. Ashmawy an opportunity to make representations
to protect his interests. It would appear Mr. Ashmawy was not given any
such opportunity. I therefore asked Respondent's counsel to consider and advise
whether, as a Superior Court, the Tax Court of Canada could refer the matter
back to the Minister for a redetermination in accordance with the requirements
of subsection 93(1). The Respondent advised the Court of Anderson v. Canada,
[2002] T.C.J. No. 382, in which the Court heard an application for an
extension of time pursuant, in part, to subsection 103(1) of the Employment
Insurance Act. In that case, the decision of the Minister was communicated
by way of letter dated May 16, 2000. The Applicant argued that the Court had an
inherent jurisdiction to extend the time beyond that permitted under the
applicable statutes because the applicant "had not been given a
hearing" and as such he had been denied natural justice. The Court
commented as follows:
If what [the Applicant] seeks is an
extension of time for appealing the Minister's decision... I cannot help him.
...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.
The Respondent
further advised that the Court's status as a Superior Court does not change its
jurisdiction with respect to strict statutory limits.
[14] I accept this advice and am compelled to dismiss Mr. Ashmawy's
application. Under these circumstances, this Court cannot direct the Minister
to provide Mr. Ashmawy with an opportunity to be heard.
[15] The application is denied.
Signed at Ottawa, Canada, this 3rd day of
December 2003.
Miller
J.
Email this Content