Date: 20010130
Docket: A-497-99
CORAM: STRAYER J.A.
ROTHSTEIN J.A.
MALONE J.A.
BETWEEN:
952240 ONTARIO LIMITED
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
Heard at Toronto, Ontario, Tuesday, January 30, 2001
Judgment delivered from the Bench at Toronto, Ontario,
on Tuesday, January 30, 2001
REASONS FOR JUDGMENT OF THE COURT PRONOUNCED BY: MALONE J.A.
Date: 20010130
Docket: A-497-99
CORAM: STRAYER J.A.
ROTHSTEIN J.A.
MALONE J.A.
BETWEEN:
952240 ONTARIO LIMITED
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto,
Ontario, on Tuesday, January 30, 2001)
MALONE J.A.
These reasons for judgment apply to appeals A-495-99 and A-497-99 and are to be placed on both Court files.
These are applications for judicial review of decisions of the Tax Court of Canada rendered on August 13, 1999. Those decisions allowed the Respondents' motions to quash the Applicants' amended applications for extensions of time for serving notices of objection in respect of taxation years 1990 and 1992 for Mezzanine Steel Limited, (taxation years 1992, 1993 and 1994 in the application of 952240 Ontario Limited) pursuant to section 166.2 of the Income Tax Act, R.S.C. 1985, c. 1, (5th Supp) as amended (the "Act"). These rulings also adjourned sine die the Applicants' similar applications with respect to the 1991 and 1993 taxation years in the case of Mezzanine Steel Limited and the 1995 taxation year in the case of the numbered company.
We have not been persuaded that in granting the Respondents' motions to quash the taxpayers' amended applications that the learned Tax Court Judge erred in law or otherwise made any reviewable errors in respect of which this Court should intervene. In our opinion Judge Sarchuk correctly determined that he lacked jurisdiction to consider these applications in both appeals.
Subsection 166.2(1) specifies that only a taxpayer who has made an application to the Minister to extend the time for serving his notice of objection under subsection 166.1 (1) may apply to the Tax Court of Canada. This application to the Tax Court can take place only after the Minister has refused the application or 90 days has elapsed after service of the application and the Minister has not responded. For the years in which the Applicants made no applications to the Minister under subsection 166.1(1) the Tax Court Judge was without jurisdiction under subsection 166.2(1) to hear the amended applications.
Nor is there a basis for this Court to interfere with the Tax Court Judge's exercise of discretion in declining the taxpayers' July 15, 1999 requests for adjournments of the Respondents' motions to quash. Such adjournments would not have solved the jurisdictional problem; new applications to the Minister being the only solution. We note that these refusals of adjournments do not preclude the Applicants from bringing future applications to the Tax Court once proper applications have been made to the Minister under subsection 166.1(1); assuming, of course, that either the Minister then refuses such applications or 90 days have elapsed after service of the applications on the Minister. In these circumstances we see no prejudice to the taxpayers or any denial of natural justice on the part of the Tax Court Judge in declining the adjournment motions.
Finally, arguments advanced under section 167 and 169 of the Act are of no assistance to the taxpayers in the absence of notices of objection served on the Minister under section 165.
In the circumstances of this case, we would dismiss both applications with one set of costs.
"B. Malone"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-497-99
STYLE OF CAUSE: 952240 ONTARIO LIMITED
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
DATE OF HEARING: TUESDAY, JANUARY 30, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT PRONOUNCED BY: MALONE J.A.
Delivered at Toronto, Ontario on Tuesday, January 30, 2001
APPEARANCES: Howard J. Alpert
For the Applicant
David W. Chodikoff, and
Christine Mohr
For the Respondent
SOLICITORS OF RECORD: Alpert Law Firm
Barristers & Solicitors
1 St. Clair Avenue East
Suite 900
Toronto, Ontario
M4T 2V7
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF APPEAL
Date: 20010130
Docket: A-497-99
BETWEEN:
952240 ONTARIO LIMITED
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF
THE COURT
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