National Bank Of Canada v. The Queen, docket 2001-686-GST-APP

[OFFICIAL ENGLISH TRANSLATION]

2001-686(GST)APP

BETWEEN:

NATIONAL BANK OF CANADA,

Applicant,

and

HER MAJESTY THE QUEEN,

Respondent.

                   Counsel for the Applicant:                   Reynald Auger

                   Counsel for the Respondent:                Michel Morel

ORDER

      The application for an order extending the time within which may be served a notice of appeal respecting the assessment bearing number 1081157, dated April 8, 1998, and made under the Excise Tax Act, is dismissed in accordance with the attached Reasons for Order.

Signed at Ottawa, Canada, this 15th day of August 2001.

"Alain Tardif"

J.T.C.C.

Translation certified true

on this 13th day of February 2003.

Erich Klein, Revisor

[OFFICIAL ENGLISH TRANSLATION]

Date: 20010815

Docket: 2001-686(GST)APP

BETWEEN:

NATIONAL BANK OF CANADA,

Applicant,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR ORDER

Tardif, J.T.C.C.

[1] This is an application for an extension of the time for instituting an appeal from an assessment.

[2] The facts are simple and not in dispute. They are well presented in paragraphs 1 to 8 of the application for an extension of time and it is accordingly appropriate to reproduce them here:

      [TRANSLATION]

1.                        On April 8, 1998, the respondent issued a notice of assessment against the applicant under reference number 1081157 (GST account no.: R136575057) for an amount of $17,440.40 pursuant to subsection 270(1) of the Excise Tax Act, which assessment was in relation to a distribution of property made on or about July 14, 1995 between Cyr Métal Inc. and Jean-Charles Turbide and Michel Aucoin following the sale of equipment and inventory, the whole as appears from a copy of the said notice of assessment produced in evidence in support of this application as Exhibit D-1;

2.             The applicant objected to the notice of assessment (Exhibit D-1) by a notice of objection dated September 17, 1999, the whole as appears from a copy of the said Notice of Objection produced in evidence in support of this Application as Exhibit D-2;

3.             On October 18, 1999, the respondent made a decision on the objection filed by the applicant, which decision confirmed the notice of assessment issued against the applicant, the whole as appears from a copy of the decision on the objection produced in evidence in support of this application as Exhibit D-3;

4.             Under the Excise Tax Act and the Tax Court of Canada Act, the applicant had ninety (90) days after the date of the Minister's decision on the objection to appeal to the Tax Court of Canada, that is, until January 18, 2000;

5.             On January 13, 2000, that is, within the time prescribed for so doing, the applicant, through her then solicitors, Roy Beaulieu & Carrier, filed a notice of appeal application with respect to the Minister's decision, the whole as appears from a copy of the said application produced in evidence in support of this application as Exhibit D-4;

6.             In February 2001, the applicant's former solicitors, Beaulieu & Carrier, were replaced by the undersigned solicitors, the whole as appears from a copy of the consent to change solicitors produced in evidence in support of this application as Exhibit D-5;

7.             It was upon receiving the applicant's instructions that the undersigned solicitors became aware that the former solicitors had erred in filing the applicant's notice of appeal application with the Court of Quebec (Civil Division), Judicial District of Québec, and not, as should have been done, with the Tax Court of Canada, and in naming the Minister of National Revenue and not Her Majesty the Queen in right of Canada as the respondent;

8.                        As appears on the notice of appeal application (Exhibit D-4), it was in fact stamped in the Court of Quebec (Civil Division), Judicial District of Québec, and bears number 200-02-023386-008.

[3] The applicant argued that the Tax Court of Canada is a court of equity and hence should take the particular facts of the case into account and find that the application is well-founded. According to the applicant, the particular and relevant facts were as follows:

·                          a total absence of bad faith;

·                          the very strong appearance of rights to be asserted;

·                          the complexity of the proceedings arising from the fact that the GST (the "Goods and Services Tax") is the creation of a federal statute that is enforced and administered by provincial authorities;

·                          a notice of appeal was indeed prepared and filed within the prescribed time, but in the wrong place, that is, with the Registry of the Court of Quebec (Civil Division), Judicial District of Québec, file no. 200-02-023386-008, instead of with the Registry of the Tax Court of Canada;

·                          The respondent did not react after the appeal was filed with the Registry of the Court of Quebec; moreover, she entered an appearance, as if everything were in order.

[4] Contrary to the applicant's assertions, the Tax Court of Canada is a court of record constituted by a specific enactment assigning it specific and limited jurisdiction. Its decisions are dictated solely by the application of the Acts included in its jurisdiction under section 12 of the statute creating the Court.

[5] The time limit referred to in section 305 of the Excise Tax Act is a mandatory one. Whatever reasons or explanations may be pleaded, failure to comply is fatal, and this Court does not have the authority to grant an extension where an application is submitted to it after the expiry of the prescribed time limit.

[6] For these reasons, the application for an extension of time is denied.

Signed at Ottawa, Canada, this 15th day of August 2001.

"Alain Tardif"

J.T.C.C.

Translation certified true

on this 13th day of February 2003.

Erich Klein, Revisor