Date: 20100412
Docket: A-5-09
Citation:
2010 FCA 96
CORAM: LÉTOURNEAU J.A.
PELLETIER J.A.
TRUDEL J.A.
BETWEEN:
GAÉTAN CLOUTIER
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Montréal, Quebec, on April 12, 2010)
LÉTOURNEAU J.A.
[1]
The Tax Court of Canada heard an application for
an extension of time to institute an appeal before it. Although the appeal
period expired on February 21, 2008, the appellant did not file his
application for an extension until July 10, 2008, some four and a half
months later.
[2]
Subsection 167(5) of the Income Tax Act
requires that the following conditions be met for an application for an
extension of time to appeal to be granted:
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167(5) When order to be made. No order shall be made under this
section unless
(a) the
application is made within one year after the expiration of the time limited
by section 169 for appealing; and
(b) the
taxpayer demonstrates that
(i) within the time otherwise limited by
section 169 for appealing the taxpayer
(A) was unable to act or to instruct another
to act in the taxpayer’s name, or
(B) had a bona fide intention to appeal,
(ii) given the reasons set out in the
application and the circumstances of the case, it would be just and equitable
to grant the application,
(iii) the application was made as soon as
circumstances permitted, and
(iv) there are reasonable grounds for the
appeal.
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167(5) Acceptation de la demande. Il n’est fait droit à la
demande que si les conditions suivantes sont réunies:
a) la demande a été présentée dans l’année suivant l’expiration du
délai imparti en vertu de l’article 169 pour interjeter appel;
b) le contribuable démontre ce qui suit:
(i) dans le délai par ailleurs
imparti pour interjeter appel, il n’a pu ni agir ni charger quelqu’un d’agir
en son nom, ou il avait véritablement l’intention d’interjeter appel,
(ii) compte tenu des raisons
indiquées dans la demande et des circonstances de l’espèce, il est juste et
équitable de faire droit à la demande,
(iii) la demande a été présentée
dès que les circonstances le permettaient,
(iv) l’appel est raisonnablement
fondé.
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[3]
Justice Tardif of the Tax Court of Canada did
not believe the explanations for the delay put forward by the appellant’s
representative, his accountant. He also found that, with respect to the practice
of the appellant’s representative and the appellant’s failure to act, there was
either complicity between the two or blatant wilful blindness on the part of
the appellant.
[4]
The appellant alleges that the judge’s behaviour
gave rise to a reasonable apprehension of bias. Referring to the decision of
the Supreme Court of Canada in Blanchette v. C.I.S. Ltd., [1973] S.C.R.
833, at pages 842 and 843, he submits that the final decision cannot be
valid if it rests on findings as to credibility made under such circumstances.
[5]
In addition to the judge’s alleged speculations about
the complicity between the appellant and his accountant, counsel for the
appellant faults the judge for having cut short the respondent’s cross‑examination
of the accountant, viewing this as another indication of an apprehension of
bias.
[6]
With respect, we cannot agree with this last conclusion
of the appellant. The judge intervened to end an aspect of the cross‑examination
that he deemed to be irrelevant to this case: see the Appeal Book, at page 34.
In fact, counsel for the respondent wanted to establish that, contrary to what
the appellant seemed to be alleging, the Revenue Agency had not been negligent
in its dealings with the appellant. In our opinion, the judge was right to conclude
that this aspect of the cross‑examination was irrelevant.
[7]
Lastly, counsel for the appellant refers us to
this statement of the judge, made after both parties had closed their cases.
This statement is found at page 43 of the Appeal Book:
[translation]
APPELLANT’S CASE CLOSED
BOTH PARTIES’ CASES CLOSED
JUDGE: Listen,
I am ready to render my decision. I will hear you first.
MARTIN FOURNIER:
You are going to hear me?
JUDGE: Yes.
MARTIN FORTIER:
All right.
SUBMISSIONS BY M.
FORTIER:
. . .
[8]
In exercising his functions, a judge is entitled
to a presumption of impartiality that, to be rebutted, requires an apprehension
of bias that rests on serious grounds: Wewaykum Indian Band v. Canada,
[2003] 2 S.C.R. 259, at paragraphs 59 and 76.
[9]
Here, this statement alone is not enough to rebut
the presumption. On the contrary, at the outset of his oral judgment delivered
from the Bench, the judge expressed his reluctance and distress in depriving a
taxpayer of a fundamental right because of another person’s mistake.
[10]
Nevertheless, the fact is that a mandator is
liable for actions of his or her mandatary. Here, as the judge found, the
appellant’s mandatary failed to carry out his mandate.
[11]
Obviously, absent a palpable and overriding
error, we may not substitute our assessment for that of the judge regarding the
credibility of witnesses whom we have not heard; such an error was not shown to
exist.
[12]
There was enough evidence on file for the judge
to find, as he did, that the appellant did not exercise due diligence and remedy
his representative’s failures and that the application for an extension of time
was not made, as it should have been, as soon as circumstances
permitted.
[13]
For these reasons, I would dismiss the appeal
with costs.
“Gilles Létourneau”
Certified true
translation
Tu-Quynh Trinh
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