Date: 20000620
Docket: 2000-4220-IT
BETWEEN:
EMILIA SPENSIERI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for order
Bowman, A.C.J.
[1]
The appellant has been caught up in a bit of a procedural mess
and it is in the interests of justice that she be extricated from
it so that she can get on with having the case dealt with on its
merits.
[2]
On October 6, 2000 the appellant applied for an extension of
time in which to file her notice of appeal from her 1995
assessment. Her chartered accountant mailed the notice of appeal
on September 18, 2000, the last day for appealing. The
notice of appeal was received by the court one day after the
expiration of the 90 day period. The Crown did not oppose
the application and on December 21, 2000 I granted the
application, and ordered
An appeal from the assessment may be instituted on or before
February 5, 2001.
[3]
The notice of appeal as originally filed and also filed with the
original application was signed by J. Altenhaus, CA, as
agent for the appellant. It does not specifically elect the
informal procedure and so it follows that it was intended to be
governed by the general procedure.[1]
[4] A
copy of my order was sent to CCRA as well as to the Department of
Justice and to the solicitor for the appellant,
Mr. Alexandre Dufresne of Spiegel Sohmer.
[5]
The motion dated March 28, 2001 to amend my order of
December 21, 2000 was heard by me on June 12, 2001 by
telephone conference. The motion is to amend the order to permit
the appellant to file the notice of appeal on the day on which
the motion is granted. The motion was supported by an affidavit
and was accompanied by a fresh as amended notice of appeal, as
well as a cheque for $250. The amount of the filing fee would
imply that the General Procedure is being chosen.
[6]
The way the problem arose will be apparent from paragraphs 8
to 11 of the supporting affidavit.
8.
Having filed the Notice of Appeal with its Application on
October 6th, 2000, the Applicant considered that
the Notice of Appeal had been filed in accordance with the order
of December 21st, 2000 (i.e. prior to February
5th, 2001).
9.
However, pursuant to a telephone conversation with the
Court's Registry Officer, the Applicant's attorneys were
told that the Notice of Appeal had not been accepted by the Court
as the fees relating to the Notice of Appeal had not been
paid.
10.
The Applicant's attorneys were under the impression that the
appropriate fees had been paid when the Notice of Appeal was
originally filed by the Applicant's accountant on September
18th, 2000.
11.
The Court did not advise the Applicant that the Notice of Appeal
filed in conjunction with the Application for Extension of time
on October 6th, 2000 had not been accepted by the
Court.
[7]
This is a perfectly understandable mistake and one that should
not redound to the detriment of the appellant.
[8]
Nonetheless the Crown has responded with a volley of technical
objections which are expressed quite articulately in the
following written submission.
This is in response to your letter dated April 5, 2001 in the
above-mentioned file by which you asked Me Jacques Loïacono
for written representations or comments relating to the motion of
Me Alexandre Dufresne dated March 28, 2001.
The applicant filed with the Tax Court of Canada a motion to
remedy the fact that he did not file his notice of appeal within
the time limit allowed by an order of Mr. Justice Bowman dated
December 21, 2001. By his motion, the applicant asks the Court
"to amend the order of Justice D.G.H. Bowman dated December
21st, 2000" to allow him to file his notice of
appeal.
The respondent objects to the motion since the modification of
an order by the Tax Court of Canada is not a remedy available to
the applicant in the Tax Court of Canada Act, in the
Tax Court of Canada Rules or in any other legislation
applicable to the Tax Court of Canada. Therefore, the respondent
argues that there is no legal basis for the applicant's
motion.
First of all, it is the informal procedure that applies to a
request for extension of time pursuant to subsection 18.29(3) of
the Tax Court of Canada Act. Nothing in this Act allows
the reconsideration of a judgment or an order. Moreover, the
Tax Court of Canada Rules (Informal Procedure) are also
silent about the existence of such a remedy.
Not only are the laws silent about modifying an order but
section 18.24 of the Tax Court of Canada Act explicitly
states that "a judgment of the Court on an appeal referred
to in section 18 is final and conclusive and is not open to
question or review in any court except the Federal Court of
Appeal in accordance with section 28 of the Federal Court
Act". This disposition also applies to applications for
extension of time.
The Act and the Rules relating to the informal
procedure being silent about the possibility to modify an order
of the Tax Court of Canada, we could look at the Rules
relating to the general procedure for guidance. The relevant
section of the Tax Court of Canada Rules (General
Procedure) is section 172 which reads:
172. (1) A
judgment that,
(a) Contains an error arising from an accidental slip or
omission, or
(b) Requires amendment in any matter on which the Court did
not adjudicate,
May be amended by the Court on application or of its own
motion.
(2) A party who seeks to,
(a) have a judgment set aside or varied on the ground of fraud
or of facts arising or discovered after it was made,
(b) suspend the operation of a judgment, or
(c) obtain other relief than that originally directed
may made a motion for the relief claimed.
Section 172 of the Rules establishes a mechanism to
reconsider a judgment. Even in the case where that remedy is
available, the situation in the above-mentioned file does not
meet the criteria set forth by the law.
The criteria referred to in subsection (1) are not met. The
applicant does not argue that there might have been an error in
the order of Mr. Justice Bowman. In fact, the applicant only
wants the Court to modify its order because he did not comply
with it, not because of any mistakes in the order.
As of subsection (2), there has been no allegation of fraud in
the motion of the applicant and we do not believe that facts
discovered after the order was rendered would have changed Mr.
Justice Bowman's decision. In fact, his decision was
favourable to the applicant, giving him a 90 day delay to file
his notice of appeal. The applicant is asking for a modification
of the order, therefore he is not asking for "other relief
than that originally directed". In fact, the applicant is
asking for the original relief sought to be modified.
Reading the laws applicable to the Tax Court of Canada, the
relief sought by the applicant in his motion is not available
under the Rules - Informal Procedure. Even if we
look for guidance in the Rules - General Procedure,
the section allowing the reconsideration of a judgment does not
allow such a remedy in this case.
Finally, the applicant knew or should have known that his
appeal was not duly filed with the Tax Court of Canada. The
writing of the order itself should have worried the applicant,
since it left him more than two months to file his notice of
appeal. This notice of appeal having been filed, the order would
have accepted the filing of the notice of appeal. Moreover, the
applicant never received the proof of service of his notice of
appeal, which should also have created a doubt relating to the
filing of the notice of appeal.
For all these reasons, the motion of the applicant should be
dismissed.
[9] I
tend to agree that this is not a case for the application of the
slip rule. That does not however end the matter.
[10] I do not
mean to be either dismissive or disrespectful of the Crown's
submission, but I cannot help thinking that the respondent is
being rather technical in mounting a major campaign to keep the
appellant from having her day in court because of a rather minor
slip-up. It is not surprising, if a person has to manoeuvre
through two acts (the Income Tax Act and the Tax Court
of Canada Act) and two sets of rules, informal and general,
that he or she might make a mistake. The rules are not intended
to be a trap for the unwary or to create a minefield of obstacles
for litigants. Rather they are supposed to facilitate the
resolution of substantive disputes.
[11] I think
this case is in the general procedure. Section 21 of the
general procedure rules sets out the manner of instituting an
appeal. This requires that the notice of appeal be filed in the
registry and that the filing fee be paid.
[12]
Sections 7 and 9 of the general procedure rules provide
7.
A failure to comply with these rules is an irregularity and does
not render a proceeding or a step, document or direction in a
proceeding a nullity, and the Court,
(a)
may grant all necessary amendments or other relief, on such terms
as are just, to secure the just determination of the real matters
in dispute, or
(b)
only where and as necessary in the interests of justice, may set
aside the proceeding or a step, document or direction in the
proceeding in whole or in part.
9.
The Court may, only where and as necessary in the interests of
justice, dispense with compliance with any rule at any time.
[13] These
rules clearly give the court the power to extend the time for
paying the filing fee.
[14] I might
add that precisely the same result will be achieved if I treat
this motion as an application under section 167 of the
Income Tax Act for an extension of time to file an appeal.
The appellant is within the time to do so and section 167 no
longer contains a prohibition against granting an extension of
time if the court had previously granted such an extension from
the same assessment.
[15] I am
therefore ordering that
(a)
the requirement in Rule 30 of the Tax Court of Canada
Rules (General Procedure) that the original notice of appeal
be signed by counsel is dispensed with;
(b)
the original notice of appeal dated September 18, 2000 is a
valid notice of appeal;
(c)
the appellant is entitled to file a fresh as amended notice of
appeal in the form accompanying the notice of motion of
March 28, 2001;
(d)
the time for paying the filing fee is extended to the date upon
which the cheque of Spiegel Sohmer for $250 was received by the
court;
(e)
the fresh as amended notice of appeal accompanying the
appellant's notice of motion of March 28, 2001 is a
valid notice of appeal;
(f)
the respondent has 60 days from the date of this order to
file a reply to the fresh as amended notice of appeal.
[16] The costs
of this motion are costs in the cause.
Signed at Montréal, Canada, this 20th day of June
2001.
"D.G.H. Bowman"
A.C.J.
COURT FILE
NO.:
2000-4220(IT)
STYLE OF
CAUSE:
Between Emilia Spensieri and
Her Majesty The Queen
PLACE OF
HEARING:
Conference call
DATE OF
HEARING:
June 12, 2001
REASONS FOR ORDER
BY:
The Honourable D.G.H. Bowman
Associate Chief Judge
DATE OF
ORDER:
June 20, 2001
APPEARANCES:
Counsel for the Appellant: Alexandre Dufresne, Esq.
Counsel for the
Respondent:
Annick Provencher
COUNSEL OF RECORD:
For the
Appellant:
Name:
Alexandre Dufresne, Esq.
Firm:
Spiegel Sohmer
Montréal, Quebec
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2000-4220(IT)
BETWEEN:
EMILIA SPENSIERI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard by way of conference call on
June 12, 2001, by
The Honourable D.G.H. Bowman
Associate Chief Judge
Appearances
Counsel for the
Appellant:
Alexandre Dufresne, Esq.
Counsel for the Respondent: Annick
Provencher
ORDER
Upon
motion by the appellant to amend the order dated
December 21, 2000
And
upon hearing what was alleged by the parties
It is
ordered that the motion be granted and
(a) the requirement in
Rule 30 of the Tax Court of Canada Rules (General
Procedure) that the original notice of appeal be signed by
counsel is dispensed with;
.../2
(b) the original notice of appeal
dated September 18, 2000 is a valid notice of appeal;
(c) the appellant is entitled to file
a fresh as amended notice of appeal in the form accompanying the
notice of motion of March 28, 2001;
(d) the time for paying the filing fee
is extended to the date upon which the cheque of Spiegel Sohmer
for $250 was received by the court;
(e) the fresh as amended notice
of appeal accompanying the appellant's notice of motion of
March 28, 2001 is a valid notice of appeal;
(f) the respondent has
60 days from the date of this order to file a reply to the
fresh as amended notice of appeal.
The
costs of this motion are costs in the cause.
Signed at Montréal, Canada, this 20th day of June
2001.
A.C.J.
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