Date: 19971107
Docket: A-568-96
CORAM: STONE J.A.
LINDEN J.A.
GRAY D.J.
BETWEEN:
Appellant
- and -
Respondent
Heard at Toronto, Ontario, Friday, November 7, 1997
Judgment delivered from the Bench at Toronto, Ontario, on Friday, November 7, 1997.
REASONS FOR JUDGMENT OF THE COURT BY: STONE J.A.
Date: 19971107
Docket: A-568-96
CORAM: STONE J.A.
LINDEN J.A.
GRAY D.J.
BETWEEN:
Appellant
- and -
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on Friday, November 7, 1997)
STONE J.A.
[1] This appeal concerns the refusal of the Trial Division, pursuant to subsection 18.1(2)1 of the Federal Court Act, to extend the time for bringing an application to review and set side a refusal of the Minister's delegate pursuant to subsection 220(3.2)2 of the Income Tax Act to extend the time for filing a preferred beneficiary election, on the ground that the reasons for the request "did not fall within the guidelines of the Fairness provisions".
[2] The evidence suggests that the trustee signed the election form prior to the deadline date and that he passed it to a staff member for posting. It was not, however, posted until some ten days after the deadline had passed.
[3] In Nelson v. Edmonton Institution, [1996] F.C.J. No. 1492 (F.C.A.), Strayer J.A. restated, at paragraph 4, the principal considerations for determining whether an extension of time should be granted:
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The main considerations for determining whether an extension of time should be granted are well established in this Court [see e.g. Grewal v. MEI (1985), 63 N.R. 106] and include the following: an intention, formulated within the time limit to take proceedings; the existence of an arguable case; the cause and actual length of the delay, and whether there was prejudiced caused by the delay. |
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[4] We respectfully agree with the Motions Judge that the "key factor" to be considered here is whether the appellant has an arguable case to present to a reviewing judge. In concluding that there was not such a case, the Motions Judge adopted the reasoning of Cullen J. in Orsini Family Trust v. Canada (Revenue Canada, Customs, Excise and Taxation), [1996] F.C.J. No. 618 (F.C.T.D.), to the effect that the Court should not substitute its decision for that of the Minister's delegate if it is satisfied that "the decision was made fairly, not arbitrarily or in bad faith".
[5] A ground for judicial review made available under subsection 18.1(4) of the Federal Court Act is "error of law". That a search for whether an error of this kind was made in the exercise of a discretionary power may be pursued by a reviewing judge is clear. In this Court's very recent decision in The Queen v. Barron, 97 DTC 5121, at page 5122, Pratte J.A. stated:
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The court may intervene and set aside the discretionary decision under review only if that decision was made in bad faith, if its author clearly ignored some relevant facts or took into consideration irrelevant facts or if the decision is contrary to law. |
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[6] In our view, it is arguable that the statutory delegate erred in law by refusing to extend the time for filing a preferred beneficiary election which had been signed and passed on to the staff by the trustee for posting prior to the filing deadline. It is, of course, for the reviewing judge to determine whether such an error occurred.
[7] The appeal will therefore be allowed with costs, the order of the Trial Division of June 28, 1996 set aside, and the time within which the appellant may commence a judicial review application of the decision in issue extended to and including November 21, 1997.
"A.J. STONE"
J.A.
FEDERAL COURT OF APPEAL
Date: 19971107
Docket: a-568-96
BETWEEN:
MCNABB FAMILY TRUST
- AND -
HER MAJESTY THE QUEEN
REASONS FOR JUDGMENT OF THE COURT
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1 18.1 (2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow.
2 220(3.2) Where (a) an election by a taxpayer or a partnership under a provision of this Act or a regulation that is a prescribed provision was not made on or before the day on or before which the election was required to be made, or (b) a taxpayer or partnership has made an election under a provision of this Act or a regulation that is a prescribed provision, the Minister may, on application by the taxpayer or the partnership, extend the time for making the election referred to in paragraph (a) or grant permission to amend or revoke the election referred to in paragraph (b).
Section 2800 of the Income Tax Regulations provides for the filing of the preferred beneficiary election within 90 days from the end of the trust's taxation year.
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