Citation: 2015 TCC 126
Date: 20150519
Docket: 2014-2599(GST)APP
BETWEEN:
JEAN-MICHEL
DÉSIR,
Applicant,
and
HER
MAJESTY THE QUEEN,
Respondent.
[OFFICIAL
ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Tardif J.
[1]
This is an application under paragraph 304(1)(a)
of the Excise Tax Act (the E.T.A.) by Jean-Michel Désir (the applicant),
for an order extending the time for filing a notice of objection with the
Minister of National Revenue (the Minister).
BACKGROUND
[2]
On March 12, 2012, the Minister sent a notice of
reassessment to the applicant based on the E.T.A. The conformity and quality of
the notice was not challenged.
[3]
On January 1, 2013, the applicant made an
application for an extension of time. The applicant attached to his application
a notice of objection together with documentation supporting his objection.
[4]
On November 14, 2013, the Minister refused the application
for an extension of time. Consequently, he sent a notice to the applicant,
informing him that his application had been refused. In the notice, the
Minister indicated to the applicant that he would have 30 days to ask the Tax
Court of Canada to reconsider that decision. In other words, the application was
refused because it was out of time.
[5]
On April 15, 2014, the applicant sent a letter
to the Minister in which he admitted that he had been late submitting a notice
of objection. Once again, he attached his notice of objection and supporting
documentation.
[6]
On June 2, 2014, the Minister again responded,
indicating to the applicant that he had exceeded the 30-day time limit for
appealing to the Tax Court of Canada.
[7]
On July 9, 2014, the applicant filed an
application for an extension of time with this Court.
APPLICABLE STATUTORY PROVISIONS
[8]
The relevant provisions of the E.T.A. read as
follows:
301. (1.1) Any person who has been assessed and who objects to the
assessment may, within ninety days after the day notice of the assessment is
sent to the person, file with the Minister a notice of objection in the
prescribed form and manner setting out the reasons for the objection and all
relevant facts.
. . .
303. (1) Where no objection
to an assessment is filed under section 301, or no request has been made under
subsection 274(6), within the time limit otherwise provided, a person may make
an application to the Minister to extend the time for filing a notice of
objection or a request and the Minister may grant the application.
. . .
(5) On receipt of an application made
under subsection (1), the Minister shall, with all due dispatch, consider the
application and grant or refuse it, and shall thereupon notify the person of
the decision by registered or certified mail
. . .
(7) No
application shall be granted under this section unless
(a) the application is made within one year after the expiration of the
time otherwise limited by this Part for objecting or making a request under
subsection 274(6), as the case may be;
. . .
304. (1) A person who has made an application under section 303 may apply to
the Tax Court to have the application granted after either
(a) the Minister has refused the application, or
(b) ninety days have elapsed after service of the application under
subsection 303(1) and the Minister has not notified the person of the
Minister’s decision,
but no application under this section may be
made after the expiration of thirty days after the day the decision has been
mailed to the person under subsection 303(5).
[Emphasis
added]
Position OF THE parties
[9]
In this case, the Minister submits that this
Court has no discretion to hear the applicant’s application for an extension of
time given that he did not make it within thirty days of his notice of decision
in accordance with subsection 304(1) in fine of the E.T.A. It is the
Minister’s position that this is a strict time limit.
[10]
The applicant is essentially resorting to
fairness arguments. He submits that, after receiving the Minister’s notice of
decision, he mandated his accountant to appeal to this Court. He thus
attributes the non-compliance with the time limit to his accountant. If that is
the case, it may be appropriate to question the extent of the mandate given to
the accountant to assess the nature of his liability. However, this Court has
neither authority nor jurisdiction over this issue.
ANALYSIS
[11]
We begin by repeating each of the relevant
deadlines in this case.
Time limit of 90 days to
object
[12]
First, under subsection 301(1.1) of the E.T.A., the
applicant had 90 days after the notice of reassessment was mailed by the
Minister to file a notice of objection. He therefore had until June 11, 2012,
to object.
[13]
The applicant missed this time limit.
Time limit of one year and 90 days to extend the time
for filing an objection
[14]
The applicant could then request an extension of
time for filing an objection under section 303 of the E.T.A. However, as stated
in paragraph 303(7)(a) of the E.T.A., this application must be made
within one year after the expiration of the 90-day time period, that is, before
June 12, 2013.
[15]
The applicant complied with this time limit.
Time limit of 30 days to appeal from the Minister’s
decision
[16]
Subsection 303(5) of the E.T.A. then requires the
Minister to, with all due dispatch, consider said application for an extension
of time and grant or refuse it.
Also according to that subsection, the Minister shall send notice of the decision
to the applicant.
[17]
If the Minister fails to notify the taxpayer of
the decision within 90 days, the taxpayer is free to apply
to the Tax Court directly to rule on the application, pursuant to paragraph 304(1)(b) of
the E.T.A.
[18]
By informing the applicant of the refusal of his
application on November 14, 2013, it took the Minister 295 days to notify him
of his decision. However, during that time, the applicant never asked this Court
to determine his application.
[19]
The applicant rather relied on paragraph 304(1)(a)
of the E.T.A.
[20]
Indeed, on July 9, 2014, he filed with this Court
an application requesting an extension of time for filing a notice of objection.
[21]
It therefore took the applicant 237 days, since
receiving notice from the Minister refusing his application, before filing a formal
appeal with the Court.
[22]
However, subsection 304(1) in fine of the
E.T.A. requires that an appeal from the Minister’s decision be filed within 30 days
from the day the notice of decision has been mailed. In other words, this provision
gave the applicant until December 16, 2013, to appeal to the Tax Court of Canada.
However, by filing his appeal on July 9, 2014, he did so 205 days later.
[23]
The applicant therefore missed this time limit.
[24]
The Minister is of the view that this is a
strict time limit. He relies, in particular, on two decisions, 9848-3173
Québec Inc. v. The Queen, 2003 TCC 217, and Maman v. The Queen, 2007
TCC 429, in which the Court clearly explained that subsection 304(1) in fine
of the E.T.A. does not give decision-makers any discretion to deviate from the
time limit of 30 days.
[25]
I would add to those decisions Bellemare v. The
Queen, 2013 TCC 381, in which Justice Boyle mentioned, at paragraph 7 of
his decision, that “the thirty-day period, along with
the one-year-and-90-day period, is fixed by law and this Court has no
jurisdiction not to apply it on grounds of equity, fairness or otherwise.”
[26]
This passage illustrates the rigour with which
Canadian courts apply the time limits in the E.T.A. See, in particular, 2786885
Canada Inc. v. Canada, 2011 FCA 197; and Pereira v. Canada, 2008 FCA
264.
[27]
Nothing more can be done to allow the applicant’s
application on the ground that the time limit error is attributable to the
accountant. It is crucial to apply a statutory provision in the absence of any
ambiguity.
[28]
While the case is somewhat unique, I,
unfortunately, cannot change anything. Indeed, the Minister reviewed the applicant’s
application for an extension of time, and on this occasion, 295 days elapsed
before he mailed a notice of his decision. Such a time limit is plainly unreasonable;
this was not a complicated matter.
[29]
It is obvious that such a long period of time
would lead the taxpayer to believe that his case had been finally resolved.
[30]
Although one cannot ignore the law, a reasonable
person may surely think that he or she is entitled to a time limit of more than
30 days if that person also had to wait 295 days before a decision was issued
in his or her case. In other words, all parties to a dispute should be bound by
the strictness of time limits.
[31]
In procedural matters, minimum fairness requires
that the parties to a dispute be subject to comparable rules, particularly with
respect to time limits. However, from the moment the Minister finally decided
to send a notice refusing his application for an extension of time, Parliament
limited, without exception, to 30 days the time limit within which the
applicant could appeal. I doubt that he, like a large majority of Canadian
taxpayers, was aware of the possibility of appealing directly to the Court pursuant
to paragraph 304(1)(b) of the E.T.A.
[32]
There are no time constraints for the Minister to
respond to an application made pursuant to subsection 303(1) of the E.T.A. His
decision may be mailed to the taxpayer, on a completely discretionary basis, weeks,
months, even years later.
[33]
Such a practice may lead the taxpayer to believe
that his or her application has been granted; use of the alternative or mechanism
under paragraph 304(1)(b) of the E.T.A. is particular and not easily
understandable from a layman’s perspective.
[34]
From the moment he or she receives a notice
refusing his or her application, the taxpayer only has 30 days to appeal. Moreover,
nothing in the E.T.A. requires the Minister to inform the taxpayer of said time
limit of 30 days, as was the case here.
[35]
The due diligence required of the taxpayer is
disproportionately more demanding than that of the Minister, as the Minister
can respond whenever he sees fit.
[36]
This situation is made even more complex by the
other time limits in the E.T.A. Indeed, both subsection 301(1.1) and section 306
in fine of the E.T.A. require a time limit of 90 days to object and appeal.
Therefore, the taxpayer must be able to distinguish this time limit from the
others.
[37]
Furthermore, section 93.1.5
of the Tax Administration Act (the T.A.A.), the corollary to section
304(1) of the E.T.A. in QST matters, allows taxpayers to appeal the Minister’s
decision within 90 days after the day of mailing of the notice of his decision.
[38]
A taxpayer therefore has more time to appeal to Court of Québec than to the Tax Court of Canada,
which I find is fundamentally incoherent.
[39]
Parliament should revisit the time limit of 30
days provided for in subsection 304(1) in fine of the E.T.A. In the case
at bar, I cannot usurp the role of Parliament. I must follow the letter of the
Act and the various decisions that have validated the rigour of the prescribed
time limit.
[40]
For these reasons, the appeal must be dismissed.
Signed at Ottawa, Canada, this 19th day of
May 2015.
“Alain Tardif”
Translation certified true
on this 3rd day of July 2015
Daniela Guglietta, Translator
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