Dionne v. M.N.R., docket 1999-378-EI

Date: 19991103

Docket: 1999-378-EI

BETWEEN:

GÉRALD DIONNE,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for Order

Tardif, J.T.C.C.

[1] This is a motion to dismiss the appeal as a result of the filing of the Notice of Appeal after the 90-day time period. According to the counsel appointed by Gérald Dionne, the Notice of Appeal was in fact communicated by facsimile on June 18, 1998, whereas the time for appealing expired on June 19, 1998 (see the underlined portion of the text of the Notice of Appeal reproduced below).

[2] The Notice of Appeal at issue reads as follows:

[TRANSLATION]

June 18, 1998

BY FACSIMILE

REVENUE CANADA

TAX COURT OF CANADA

200 Kent Street

4th Floor

Ottawa, Ontario

KlA 0M1

Attention: Registrar of the Court

SUBJECT: Appeal to the Tax Court of Canada

Our client: Gérald Dionne (File no. 40061)

Social insurance number: 210 196 580

Dear Madam/Sir,

First, please be advised that our professional services have been retained by Gérald Dionne in this matter.

At a recent meeting, Mr. Dionne informed us that his application for determination of the insurability for unemployment insurance purposes of his employment with Matériaux Manic Inc. during the periods from May 3 to December 17, 1993, from August 8 to December 10, 1994 and from May 8 to October 27, 1995, had in fact been denied. According to a letter dated March 19, 1998, a copy of which is enclosed herewith, "it has been determined that this employment was not insurable because it was not governed by a contract of service and furthermore that there was no employer-employee relationship." The same letter also states that Mr. Dionne may appeal to the Tax Court of Canada within 90 days of the date on which the letter in question was mailed. Consequently, Mr. Dionne has until June 19, 1998 to file his appeal with the Tax Court of Canada.

We therefore wish to advise you that Mr. Dionne wishes to appeal from this decision to the Tax Court of Canada. As Mr. Dionne retained our professional services in this matter only a few days ago, we wish to inform you that Mr. Dionne's appeal will be filed shortly in the form prescribed by the Tax Court Rules.

Please do not hesitate to contact the undersigned should you have any questions concerning this letter.

Yours sincerely,

VALCOURT CARRIER PELLETIER

________________________________

Stéphane Valcourt

[3] In response to the Notice of Appeal registered on June 18, 1998, the respondent filed on August 16, 1999, a motion to dismiss the appeal on the ground that the Notice of Appeal was filed late, that is to say, after the 90-day time period set by the Employment Insurance Act (the "Act"). The 90-day time period had in fact expired on June 17, 1998.

[4] At the hearing of the motion to dismiss on September 30, 1999, the appellant made an application to extend the time to appeal, supported by an affidavit signed by the appellant which reads as follows:

[TRANSLATION]

Affidavit

I the undersigned, Gérald Dionne, of the Town of Edmundston, Madawaska County, Province of New Brunswick, DO SWEAR the following:

1. I am the applicant in this motion, and, except where otherwise indicated, I have personal knowledge of the facts stated in this affidavit.

2. On or around June 15, 1998, I was informed by my lawyer, Stéphane Valcourt, that we had until June 18, 1998 inclusive to file a notice of appeal with the Tax Court of Canada. Mr. Valcourt informed me at the time that he had been advised of this time limit by a registrar of the Tax Court of Canada, Marjolaine Chartrand, which I believe to be true.

3. On or around June 18, 1998, I was informed by my lawyer, Stéphane Valcourt, that he had sent a letter by facsimile to the Tax Court of Canada to preserve our 90-day time to appeal with a view to eventually filing a formal notice of appeal, which I believe to be true. (See the said letter in Appendix A to this affidavit.)

4. On or around December 4, 1998, I was informed by my lawyer, Stéphane Valcourt, that, in accordance with the instructions of the Tax Court of Canada registrar Marjolaine Chartrand, he had sent the original of the letter of June 18, 1998, which was to serve as a notice of appeal, which I believe to be true. (See correspondence of December 4, 1998 in Appendix B hereto.)

5. On or around January 28, 1999, I was informed by my lawyer, Stéphane Valcourt, that he had received a letter from the Tax Court of Canada stating that the notice of appeal had been received and filed on June 18, 1999. The letter stated that the notice of appeal would be served on the respondent on January 29, 1999, and that we would be informed of the date, time and place of the hearing of the appeal, which I believe to be true. In addition, I subsequently read the letter in question. (See the letter in question in Appendix C to this affidavit.)

6. My lawyer, Stéphane Valcourt, informed me very recently of the Minister of National Revenue's motion and that was the first time since the notice of appeal was filed that I had heard of this matter of the 90-day time limit for filing a notice of appeal, which we apparently missed.

SWORN before

me in the town of Edmundston,

Madawaska County, Province of

New Brunswick, this 30th day ______________

of September 1999. Gérald Dionne

Stéphane Valcourt

Commissioner for Taking Oaths,

in my capacity as a lawyer

[5] The Court disposed immediately of the motion to extend the time to appeal in view of the fact that the new rules are very specific as to the period in which such an application may be made. That application was accordingly dismissed.

[6] In the alternative, the appellant argued that the Notice of Appeal dated June 18, 1998, should be interpreted in such a way as to be considered as being in itself an application to extend the time for filing a Notice of Appeal. That Notice of Appeal, which was transmitted by facsimile, is reproduced on page 2 of this judgment.

[7] Although highly sympathetic to the appellant's request that his Notice of Appeal be considered in a very broad sense, the Court unfortunately cannot grant it since the amendment permitting the filing of a motion to extend the time for appealing came into effect when Bill C-28 was passed, that is, on November 1, 1998.

[8] Consequently, I cannot interpret the content of the letter of June 18, 1998, as an application to extend time since the Act at the time did not permit an application to extend the 90-day time period to be filed, as that right was not created until November 1, 1998.

[9] For these reasons, I must allow the respondent's motion and quash the purported appeal on the ground that the Notice was filed late.

Signed at Ottawa, Canada, this 3rd day of November 1999.

"Alain Tardif"

J.T.C.C.

[OFFICIAL ENGLISH TRANSLATION]

Translation certified true on this 31st day of August 2000.

Erich Klein, Revisor