Gagnon v. M.N.R., docket 96-2001-UI

Date: 19971017

Docket: 96-2001-UI

BETWEEN:

GHISLAIN GAGNON,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for Order

Prévost, D.J.T.C.C.

[1] These motions were heard at Rivière-du-Loup, Quebec, on September 15 and 16, 1997.

[2] On July 4, 1996, the Minister of National Revenue (the "Minister") determined that the appellant’s employment with Gouttières K.R.T. Inc., the payer, from October 22 to 26, 1990, from May 6 to October 11, 1991, from November 4 to 22, 1991, from May 4 to September 25, 1992, from October 19 to November 6, 1992, from May 3 to October 8, 1993, from October 25 to 29, 1993, and from May 2 to October 28, 1994, was not insurable because the appellant had de facto control of more than 40% of the payer’s voting shares and because the employment was not held pursuant to a contract of service.

[3] On January 16, 1997, the Minister filed a notice of motion reading as follows:

[TRANSLATION]

TAKE NOTICE that the respondent will be bringing a motion in the Tax Court of Canada at 9:30 a.m. on March 11, 1997, at the Courthouse, Courtroom 4.10, at 33 Rue de la Cour, at Rivière-du-Loup, for the dismissal of the appeal filed by the appellant, on the ground that the appeal is out of time and is moot since it was not filed within the 90-day period provided for in section 70(1) of the Unemployment Insurance Act, R.S.C. 1985 c. U-1.

AND TAKE NOTICE that the affidavit of Yves Fortier, appeals officer with the Department of National Revenue, and such other documents as may be deemed useful, will be presented in support of this motion.

TAKE NOTICE ALSO THAT, in case the Court should decide that the appellant’s appeal has been validly filed, the respondent hereby moves for an extension of time for filing his reply to the notice of appeal.

[4] Yves Fortier’s affidavit reads as follows:

[TRANSLATION]

I the undersigned, Yves Fortier, having an office at the Department of National Revenue, 305 boul. René Lévesque ouest in Montréal, and having been duly sworn, state the following:

1. I am an appeals officer with the Department of National Revenue and having reviewed the appellant’s file with this Department, I have personal knowledge of the facts set out below:

(a) . . .

(b) On October 4, 1996 the appellant filed with the Registry of the Tax Court of Canada notice of an appeal against the notification from the Minister dated July 4, 1996, as appears in the record of that Court.

(c) The notice of appeal relating to the aforementioned periods was filed more than 90 days after the Minister’s decision dated July 4, 1996, was communicated to the appellant.

(d) To my knowledge, the appellant has not to date applied for an extension of time for the filing of his notice of appeal.

(e) All the facts alleged in this affidavit are true.

[5] On March 11, 1997, the hearing of this motion was postponed and the motion was subsequently set down for hearing on September 15, 1997.

[6] On September 12, 1997, Jérôme Carrier filed the following notice of motion on behalf of his client Ghislain Gagnon :

[TRANSLATION]

TAKE NOTICE THAT

the appellant will be bringing a motion in the Tax Court of Canada, at 9:30 a.m. on September 15, 1997, at the Courthouse, Courtroom 4.10, 33 Rue de la Cour, Rivière-du-Loup, for an extension of time for filing an appeal with the Tax Court of Canada in accordance with subsection 70(1) of the Unemployment Insurance Act, R.S.C. 1985, c. U-1.

AND TAKE NOTICE ALSO THAT

the affidavit of Ghislain Gagnon, and such other documents as may be deemed useful and necessary, will be filed in support of this motion.

[7] The application for an extension of time reads as follows, following an amendment made at the hearing:

[TRANSLATION]

1. In the week of July 29, 1996, the appellant received . . . the notifications from the Minister dated July 4 of that same year, copies of . . . the notifications from the Minister being filed in support hereof as Exhibit R-1 to have effect as if herein set out at length;

2 In mid-September of 1996, the appellant met with Pierrette Lévesque and, in the course of the said meeting, instructed her to file an appeal for him with the Tax Court of Canada from the decisions dated July 4, 1996;

3. Ms. Lévesque did in fact file an appeal with the Tax Court of Canada on October 3, 1996, a copy of the said appeal being filed in support hereof as Exhibit R-2 to have effect as if herein set out at length;

4. On October 29, 1996, the Registry of the Tax Court of Canada sent Ms. Lévesque an acknowledgement of receipt of the notice of appeal, a copy of the acknowledgement of receipt being filed in support hereof as Exhibit R-3 to have effect as if herein set out at length;

5. The appellant received no news from his lawyer until July 16, 1997, when he received a letter from Jean-Paul Boucher, to which was appended a second letter, dated July 9, 1997, to Mr. Boucher from Louise Rivard, Hearings Coordinator at the Tax Court of Canada, copies of the said letters being filed in support hereof as Exhibit R-4 to have effect as if herein set out at length;

6. On September 10, 1997, the appellant contacted the undersigned and advised him of his wish to retain him for the hearing before the Tax Court of Canada scheduled for September 15, 1997;

7. The appellant is in no way responsible for the delay in filing and forwarding the notice of appeal with and to the Tax Court of Canada;

FOR THESE REASONS, MAY IT PLEASE THE COURT :

TO GRANT the appellant an extension of time with regard to the filing of the notice of appeal dated October 3, 1996;

TO PERMITthe filing of the said notice of appeal and

TO GRANT the appellant the right to be heard before this Court . . .

[8] By consent of the parties through their counsel, the two motions were heard at the same time.

[9] It is true, according to Exhibit R-5 filed in support of the motion for an extension of time, that the notice of appeal was mailed on October 3, 1996, but by counsel for the appellant’s own admission, it was already late.

Argument of counsel for the appellant Ghislain Gagnon

[10] In Attorney General of Canada v. André Vaillancourt (A-639-91), Marceau J.A., writing for the Federal Court of Appeal, states at page 2:

The Attorney General’s first argument was that the trial judge exceeded his jurisdiction by ruling on the merits of the appeals, as these appeals were brought after the deadline allowed for the purpose by s. 70(1) of the Act had expired. We consider that this argument is conclusive. The judge had no choice but to allow the applications to dismiss made by the Minister. This Court has held, inter alia, in Attorney General of Canada v. Denyse Blais, (1986), 64 N.R. 378 (F.C.A.), that a deadline like this one in s. 70(1) is a strict deadline and any proceeding begun after it has expired can only be struck out, unless an extension has previously been granted.

[11] Subsection 70(1) of the Unemployment Insurance Act reads as follows:

The Commission or a person affected by a determination by, or a decision on an appeal to, the Minister under section 61 may, within ninety days after the determination or decision is communicated to him, or within such longer time as the Tax Court of Canada on application made to it within those ninety days may allow, appeal from the determination or decision to that Court in the manner prescribed.

[12] As this section provides that the application for an extension of time must be made within 90 days, and as the judgment cited above does not refer to these words, this provides sufficient leeway to grant his client’s motion.

[13] Section 82 of the Unemployment Insurance Act reads as follows:

An appeal from a decision of a board of referees must be brought within sixty days after

(a) the day the decision is communicated to the claimant, or

(b) the earlier of the day that the decision is communicated to the claimant and the day that the decision is communicated to the employer, if the decision is communicated to both the claimant and the employer,

or such longer period as the umpire may in any case for special reasons allow.

And it is not stated here that the application for an extension of time must be made within the 60-day period.

[14] In their book entitled Unemployment Insurance Act and Regulations Annotated, Pierre-Yves Bourdeau and Claudine Roy write, at page 401:

The Commission must also produce the file, the date at which the Board gave its decision to the Commission, the date at which the Commission communicated with appellant, in writing, and, most important, the date when the communication was received by claimant.

Moropito, CUB 6516, March 27, 1981, Cattanach J.

Melis, CUB 6494, March 18, 1981, Cattanach J.

[15] His client had only missed the deadline by one day.

[16] Subsection 70(1) of the Unemployment Insurance Act may be strict, but his client is nevertheless entitled to be heard.

Argument of counsel for the respondent

[17] His colleague had drawn a parallel between sections 70 and 82 of the Unemployment Insurance Act, but section 70 is clear and should not be subject to interpretation.

[18] Section 5 of the Tax Court of Canada Rules - Unemployment Insurance reads as follows:

Commencement of Appeal

5. (1) An appeal by an appellant from a determination by, or a decision on an appeal to, the Minister shall be instituted within 90 days after the determination or decision is communicated to the appellant, or within such longer time as the Court may allow on application made to it within those 90 days.

(2) Where a determination or 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 that date specified on the determination or decision. . . .

(6) If an appeal is instituted by mail, the date that the appeal is instituted is the date stamped on the envelope at the post office and, if there is more than one such date, the date of instituting the appeal shall be deemed to be the earliest date.

[19] Subsection 5(2) establishes a presumption that must be respected.

[20] In The Attorney General of Canada v. John F. Bowen, [1992] 1 F.C. 311, Stone J. A., writing for the Federal Court of Appeal, states at page 314:

In our opinion, the duty resting upon the Minister under subsection 165(3) was to do precisely what he did, viz., notify the respondent of the confirmation by registered mail. Nothing in that subsection or in section 169 required the notification to be “served” personally or to be received by the taxpayer. In dispatching the notification by registered mail the Minister was entitled to avail himself of the address or addresses which the respondent himself had already furnished. There was no obligation on him to look beyond that information. Moreover, a requirement for the receipt of the notification would be difficult if not totally unworkable from an administrative standpoint. Parliament has not required it; it has required merely that the notification be dispatched by registered mail.

[21] In unemployment insurance matters, the Minister does not even have an obligation to send the letter by registered mail in such cases.

[22] The Minister’s only obligation is to send the document in question to the addressee’s correct address and this he did.

Analysis and conclusion

[23] The appellant received the Minister’s letter dated July 4, 1996, notifying him of the determination in the week of July 29, 1996, according to his affidavit attached to his motion for an extension of time, and he waited until mid-September 1996 to meet his first lawyer, Pierrette Lévesque, and to instruct her to file an appeal from the decision dated July 4, 1996, again according to his affidavit.

[24] The notice of appeal was mailed on October 3, 1996, as appears from the post office receipt filed as Exhibit R-5 in support of the motion for an extension of time, and was received at the Court on October 4, 1996, that is, after the 90-day time period prescribed in subsection 70(1) of the Unemployment Insurance Act.

[25] Subsection 70(1) of the Unemployment Insurance Act is clear and accordingly not subject to interpretation.

[26] Vaillancourt states that this subsection is to be applied strictly and it affords no leeway for the appellant’s motion.

[27] There is of course section 82 of the Act, but it concerns an appeal from a decision by a board of referees, not from a decision by the Minister as in the instant case.

[28] Parliament did not use the same terms in subsection 70(1) and it is this provision that must be applied here.

[29] Moropito and Melis concern section 82 of the Unemployment Insurance Act, not subsection 70(1).

[30] It is true that the appellant was only one day late, but the time limit for appealing is a strict one.

[31] His motion for an extension of time was not brought within 90 days as required by subsection 70(1).

[32] The Court Rules are very clear and are not subject to interpretation either. The Minister’s decision was communicated to the appellant on July 4, 1996.

[33] Bowen clearly shows that, in income tax matters, there is no requirement that the notification be served personally or that it be received by the taxpayer.

[34] The same is true in unemployment insurance matters, in which, moreover, the Minister does not even have an obligation to use registered mail.

[35] The Minister’s only obligation was to send notice of his determination to the appellant’s correct address and this he did.

[36] The motion for an extension of time must therefore be dismissed and the motion to dismiss the appeal allowed in accordance with these conclusions.

“A. Prévost”

D.J.T.C.C.

[OFFICIAL ENGLISH TRANSLATION]

Translation certified true on this 29th day of June 1998.

Erich Klein, Revisor