Date: 20101110
Docket: 10-A-34
Citation: 2010 FCA 304
Present: PELLETIER
J.A.
BETWEEN:
VITO OROFINO
Applicant
and
CANADA CUSTOMS AND REVENUE AGENCY
Respondent
REASONS FOR ORDER
PELLETIER J.A.
[1]
One
of the criteria for the granting of an extension for the time to file a notice
of appeal is that the proposed appellant must have an arguable case. The case
which is advanced by Counsel for Mr. Orofino is that Mr. Orofino and his
bookkeeper arrived at court thinking that they were there to deal with the
issue of an extension of the time to file an appeal from the Minister’s
reassessment but that they were dragged, unprepared, into a trial on the merits.
In short, Mr. Orofino claims that he was denied natural justice.
[2]
A
reading of the transcript of the hearing, which was filed by the respondent,
shows that there is absolutely no merit to this argument. There had been some
confusion between Mr. Orofino’s income tax problems and his problems with
GST. By the time the matter came on for trial on February 3, 2010, this
misunderstanding had been cleared up and it was clear to all that the matter
pending before the Court that day was the appeal from the Minister’s
reassessment of Mr. Orofino under the Income Tax Act, [1985, C. 1
(5th Supp.)]. The following extract from the transcript makes this
abundantly clear:
MR. THEIL [Counsel for the
Minister]: Your Honour, the respondent has decided to not to pursue the
preliminary objection.
JUSTICE PIZZITELLI: Very well.
MR. THEIL: I wanted to let
you know it is the respondent’s understanding that we are only discussing an
income tax matter at this stage.
JUSTICE PIZZITELLI: Is that
correct?
MR. WHARTON [Mr. Orofino’s
bookkeeper and agent]: That is correct, that is correct.
JUSTICE PIZZITELLI: Very well,
then. I have gone through the file and, of course, I can understand the
confusion. In order to rectify what I think have been some administrative and
other errors in the file, we are going to rule that the parties are consenting
to proceed in the matter of an IT-file, and that the Crown has withdrawn its
preliminary motion to have the appeal quashed for the 2001 and 2002 taxation
years.
The appellant confirmed that
this is not an appeal under the GST for those years, as well.
Very well. Are you gentlemen
prepared to proceed at this point? Are you ready to go?
MR. WHARTON: We are. We are.
[3]
The
Tax Court Judge then gave Mr. Orofino and his agent a brief outline of the
procedure to be followed and told them that they should feel free to ask
questions as required. Mr. Wharton then made certain remarks by way of an opening
statement:
MR. WHARTON: Yes. We had written
to the tax office’s officer about having them to have a second look at some
discrepancies we found. The letter was dated May 7, 2008. We didn’t hear back
from them, and this is the reason for the objection filed with the Court.
[4]
This
was the first point which Mr. Wharton wished to raise as a preliminary
objection. After some discussion with the Court, he proceeded to make his
second point:
MR. WHARTON: That was the
first. Secondly, which is the last paragraph in the same letter, the payroll,
the auditor stated that the payrolls for 2001, it was not … especially 2002.
And it was paid by the O.V. Acoustical.
JUSTICE PIZZITELLI: All
right. We understand the issues.
MR. WHARTON: Yes.
JUSTICE PIZZITELLI: Are you
prepared to proceed with submitting your evidence?
MR. WHARTON: Yes, Sir.
[5]
Nothing
in this permits the inference that Mr. Orofino and Mr. Wharton were present in
Court expecting to deal with whether Mr. Orofino would be granted an extension
of time to file his appeal. It is clear that they were there to deal with the
merits of the appeal. There is no arguable case that Mr. Orofino was denied
natural justice.
[6]
For
that reason, the application for an extension of time to file a notice of
appeal will be dismissed with costs.
"J.D.
Denis Pelletier"
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