Date: 20010611
Docket: A-613-98
Neutral citation: 2001 FCA 195
CORAM: RICHARD C.J.
ROTHSTEIN J.A.
SEXTON J.A.
BETWEEN:
THE MINISTER OF NATIONAL REVENUE
Applicant
- and -
GARRY QUINTON
Respondent
REASONS FOR JUDGMENT
SEXTON J.A.
This is an application for judicial review of the Order of the Tax Court dated September 11, 1998 in which the Tax Court Judge dismissed the Minister's motion to quash the appeal on the basis that it was filed beyond the time allowed by the Unemployment Insurance Act.
The Minister mailed a determination letter dated July 4, 1996 to the Respondent advising him that his employment with J.B.R. Contracting Ltd. from August 8, 1994 to January 14, 1995 was not insurable. The letter also advised that the Respondent could appeal to the Tax Court of Canada within 90 days of the mailing date of the letter.
Although the letter was addressed to the last known address of the Respondent, he did not receive notice of it until January 19, 1997 because he was away from home in other parts of Canada looking for work. His brother was living at the same address and simply kept the Respondent's mail for him unopened at his home. The respondent had not provided Revenue Canada with any new address nor had he advised that he would be away from home.
The Respondent filed a Notice of Appeal with the Tax Court on March 25, 1997, 263 days after the date of the determination letter.
The Tax Court dismissed the Minister's motion to quash on the basis that the Minister's letter was not communicated to the Respondent until his return to his home on January 19, 1997 and that the date of actual communication was the operative date for purposes of section 70(1) of the Unemployment Insurance Act.
Section 70(1) of the Unemployment Insurance Act provides:
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.
Rule 5(2) of the Tax Court of Canada Rules of Procedure respecting the Unemployment Insurance Act provides:
Where a determination or decision ... 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 the date specified in the decision.
Although we have some sympathy with the Respondent and therefore understand the motive of the learned Tax Court Judge, we are bound by the legislation to disagree with his result.
Section 70(1) in combination with Rule 5(2) does not permit any appeal beyond the expiration of 90 days from the date of mailing of the determination letter or such longer time as the Tax Court may allow upon application made to it within the 90 days. No such application was made in the present case.
As long as the determination letter is mailed to the correct address, as it was in the present case, it is deemed to be received when mailed.
The Minister's application will be allowed. The Order of the Tax Court dated September 11, 1998 will be set aside and the matter referred back to the Tax Court for redetermination in
accordance with these reasons.
"J. EDGAR SEXTON"
J.A.
"I agree
J. Richard C.J."
"I agree
Marshall Rothstein J.A."
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