Date: 20010214
Docket: 2000-3660-IT-APP
BETWEEN:
BRIAN HEAP,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Order
Lamarre Proulx, J.T.C.C.
[1]
This is an application for an order extending the time within
which an appeal may be instituted in accordance with
section 167 of the Income Tax Act
(the "Act").
[2]
The question at issue is whether such an application made by
regular mail on the last day of the statutory time limit of a
year provided for in paragraph 167(5)(a) of the
Act is made within that statutory time limit.
[3]
The pertinent part of subsection 169(1) reads as follow:
169(1) Where a taxpayer has served
notice of objection to an assessment under section 165, the
taxpayer may appeal to the Tax Court of Canada to have the
assessment vacated or varied after either
(a)
the Minister has confirmed the assessment or reassessed, or
...
but no appeal under this section may be instituted after the
expiration of 90 days from the day notice has been mailed to the
taxpayer under section 165 that the Minister has confirmed the
assessment or reassessed.
[4]
Subsections 167(1), 167(3) and
paragraph 167(5)(a) of the Act read as
follows:
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.
167(3) An application under
subsection (1) shall be made by filing in the Registry of
the Tax Court of Canada, or by sending by registered mail
addressed to an office of the Registry, 3 copies of the
application accompanied by 3 copies of the notice of appeal.
167(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
...
[5]
The parties agree that August 21, 2000 was the last day of
the period of one year provided for in paragraph 167(5)(a)
of the Act. An application for an extension of time to
file an appeal was sent to this Court by Counsel for the
Applicant by regular mail on the last day of the delay, being
August 21, 2000. It was received by the Court on August 24,
2000.
[6]
There is an Affidavit of Counsel's secretary stating that it
was through a misunderstanding on her part that she sent it by
regular mail. Paragraphs 2 to 5 of the Affidavit read as
follows:
2.
I received written instructions by Orly Kahane-Rapport, on
August 21, 2000, to "send the Application for Extension
of Time along with the Notice of Appeal by Reg. Mail to the
Registrar of the Tax Court of Canada".
3.
On Monday August 21, 2000, I sent the Application for
Extension of Time along with the Notice of Appeal by regular mail
to the Registrar of the Tax Court of Canada.
Attached hereto and marked as exhibit "A" is a
copy of a letter dated August 21, 2000.
4.
On November 27, 2000, I was made aware that the package should
have been sent out by Registered Mail pursuant to the Tax Court
of Canada's procedures.
5.
This was a mistake on my part wherein I mistook the written
instructions of Orly Kahane-Rapport of "Reg.Mail" to be
regular mail when her intent was that I send it Registered
Mail.
[7]
Counsel for the Applicant filed as Exhibit A-1 a Book
of Documents divided in five tabs. The purpose of these documents
is to show that until August 10, 2000, there was
correspondence between the Applicant and the Minister's agent
concerning the application of the fairness provisions of the
Act and that therefore there was no lack of diligence on
the Applicant's part.
[8]
Counsel for the Applicant referred to the decision of this Court
in Skirt Togs Industries Ltd. v. M.N.R., [1982] C.T.C.
2156, and more particularly to the excerpts at page
2163 :
... However, the decision of the Supreme Court in the
Bowen case must be followed:
... in accordance with the principle that a party may not
be deprived of his rights on account of an error of counsel where
it is possible to rectify the consequences of such error without
injustice to the opposing party ...
[9]
Counsel for the Applicant argued forcefully that there was no
prejudice to the Respondent and the Applicant should not be
deprived of his right since there were reasonable grounds for
appeal.
[10] Counsel
also referred to D. Kramer et al v. M.N.R., [1984]
C.T.C. 2784, where it was found by the Tax Review Board that the
application had indeed been sent within the year, although it got
lost and was not received by the Board's Registry. Counsel
for the Applicant referred to the following excerpt at
page 2787:
In these circumstances, which are unusual, I conclude that
Mr. Brudner, on behalf of the Kramer family made, in all
good faith, applications for extension of time for filing notices
of objection on October 7 or 8, 1982, and took the normal
necessary steps to have the applications sent to the Tax Review
Board within the meaning of paragraph 167(5)(a) of
the Act. In my opinion, a stricter interpretation of the
wording of paragraph 167(5)(a) would, in the
circumstances, remove the discretionary power, which Parliament
intended to confer on this Court in subsection 167(1).
[11] Counsel
for the Applicant underlines the last sentence and submits that
the Court should interpret the time limit provided for in
paragraph 167(5)(a) of the Act in a liberal
manner in view of exercising its discretion regarding
subsection 167(1) of the Act.
[12] In the
same line of thought, Counsel for the Applicant referred to
Hazan v. The Queen, [1998] 2 C.T.C. 2665, where it
was accepted that the taxpayer did not become aware of the second
notices of assessments and that the time for filing notice did
not begin until the taxpayer became aware of the
reassessments.
[13] Counsel
for the Respondent did not raise any issue other than that the
Applicant was outside the statutory time limit and that there was
no discretion to extend it. He referred to the decisions of this
Court in Porodo v. The Queen, [1990] T.C.J. No. 613,
and Minuteman Press of Canada Co. v. The Queen,
[1987] T.C.J. No. 1160. In both of these cases, the
Applicants had referred to the decision of D. Kramer et
al. (supra). He quoted from Porodo
(supra) the following excerpt:
In Kramer, the Court accepted the sworn testimony of
the accountant plus certain corroborating documents to prove that
the taxpayers had complied with subsection 167(3) on
October 8, 1982. In this application, Mr. Porodo
testified that he did not comply with section 165 but sent
his objections to Winnipeg by ordinary mail. In these
circumstances, I find that the Kramer case is not helpful.
[14] Counsel
for the Respondent referred to the decision of the Supreme Court
of Canada in Reference re Manitoba Language Rights,
[1985] 1 S.C.R. 721, and more particularly to the following
excerpt at page 737:
As used in its normal grammatical sense, the word
"shall" is presumptively imperative. ... It is
therefore incumbent upon this Court to conclude that Parliament,
when it used the word "shall" in s. 23 of the
Manitoba Act, 1870 and s. 133 of the Constitution Act,
1867, intended that those sections be construed as mandatory
or imperative, in the sense that they must be obeyed, unless such
an interpretation of the word "shall" would be utterly
inconsistent with the context in which it has been used and would
render the sections irrational or meaningless. See, e.g. Re
Public Finance Corp. and Edwards Garage Ltd. (1957), 22
W.W.R. 312, p. 317 (Alta. S.C.).
Conclusion
[15] The
evidence is that the Applicant did not comply with
subsection 167(3) of the Act. In so doing, the
Applicant did not comply with paragraph 167(5)(a) of
the Act, which sets a definitive time limit within which
an application to extend the time specified at
subsection 169(1) of the Act may be made. By their
purpose, paragraph 167(5)(a) and
subsection 167(3) are imperative. The matter of whether or
not there is a prejudice to the Respondent is not relevant. The
application should be received by the Court Registry, or at least
the application should have been sent by registered mail within
the year provided for in paragraph 167(5)(a) of the
Act. The Court does not have any discretion to extend that
time. The only discretion that it has is to extend the
90-day period provided for in subsection 169(1) of the
Act.
[16] None of
the decisions referred to by Counsel for the Applicant were to
the effect that if a taxpayer had not complied with the statutory
time limit of one year, the Court had discretion to extend
it.
[17] The
application is dismissed.
Signed at Ottawa, Canada, this 14th day of February, 2001.
"Louise Lamarre Proulx"
J.T.C.C.
COURT FILE
NO.:
2000-3660(IT)APP
STYLE OF
CAUSE:
Brian Heap and Her Majesty the Queen
PLACE OF
HEARING:
Toronto, Ontario
DATE OF
HEARING:
December 4, 2000
REASONS FOR ORDER
BY:
The Hon. Judge Louise Lamarre Proulx
DATE OF
ORDER:
February 14, 2001
APPEARANCES:
Counsel for the
Appellant:
Orly Kahane-Rapport
Counsel for the
Respondent:
Steven Leckie
COUNSEL OF RECORD:
For the
Appellant:
Name:
Orly Kahane-Rapport
Firm:
William E. Mathers & Associate
Mississauga, Ontario
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2000-3660(IT)APP
BETWEEN:
BRIAN HEAP,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Application heard on December 4, 2000 at
Toronto, Ontario, by
the Honourable Judge Louise Lamarre Proulx
Appearances
Counsel for the
Applicant:
Orly Kahane-Rapport
Counsel for the
Respondent:
Steven Leckie
ORDER
Upon
application for an Order extending the time within which an
appeal from the assessment made under subsection 227(10) of
the Income Tax Act, notice of which bears
number 00363 and is dated January 8, 1998, may be
instituted;
The
application is dismissed, in accordance with the attached Reasons
for Order.
Signed at Ottawa, Canada, this 14th day of February, 2001.
J.T.C.C.
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