Date: 20081204
Docket: A-511-08
Citation: 2008 FCA 382
Present: SHARLOW
J.A.
BETWEEN:
CANADA TRUSTCO MORTGAGE
COMPANY
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1]
The
appellant Canada Trustco Mortgage Company seeks an order confirming that its
notice of appeal was filed on time, or alternatively an order permitting the
notice of appeal to be filed late. The Crown opposes the motion, and points out
that if the motion is dismissed, the appeal must also be dismissed for want of
jurisdiction.
[2]
The appeal
is from a judgment of the Tax Court of Canada dismissing Canada Trustco’s
appeal from two assessments under subsection 224(4) of the Income Tax Act,
R.S.C. 1985, c. 1 (5th Supp.). The appeal was conducted under the
Tax Court of Canada Rules (General Procedure), SOR/90-588. The judgment
was signed on August 29, 2008.
[3]
A final
judgment of the Tax Court in an appeal conducted under the General Procedure
Rules may be appealed to this Court pursuant to paragraph 27(1.1)(a)
of the Federal Courts Act, R.S.C. 1985, c. F-7. Paragraph 27(2)(b)
of the Federal Courts Act establishes the mode of appeal and the time
limit for bringing an appeal from a final judgment. It reads as follows:
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27. (2) An appeal under
this section shall be brought by filing a notice of appeal in the Registry of
the Federal Court of Appeal
[…]
(b) in any other case, within 30 days, not
including any days in July and August, after the pronouncement of the
judgment or determination appealed from or within any further time that a
judge of the Federal Court of Appeal may fix or allow before or after the end
of those 30 days.
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27.
(2) L’appel interjeté dans le cadre du présent article est formé par le dépôt
d’un avis au greffe de la Cour d’appel fédérale, dans le délai imparti à
compter du prononcé du jugement en cause ou dans le délai supplémentaire
qu’un juge de la Cour d’appel fédérale peut, soit avant soit après
l’expiration de celui-ci, accorder. Le délai imparti est de :
[…]
b)
trente jours, compte non tenu de juillet et août, dans le cas des autres
jugements.
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[4]
The Federal
Courts Act does not define the word “pronouncement”. Normally, in the case
of a judgment rendered in writing by a judge of a superior court of record, a
judgment would be considered to be “pronounced” when it has been signed and
recorded by the registry. The latter step is often referred to as “entering”
the judgment into the record of the court. In my view, that is the meaning that
should be adopted in the case of a judgment of the Tax Court of Canada.
[5]
Section
167 of the General Procedure Rules is consistent with this
interpretation. It reads as follows:
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167.
(1) The Court shall dispose of an appeal or an interlocutory or other application
that determines in whole or in part any substantive right in dispute between
or among the parties by issuing a judgment and shall dispose of any other
interlocutory or other application by issuing an order.
(2) A judgment shall be
dated on the day it is signed and that day is the date of the pronouncement
of the judgment.
(3) A judgment and the
reasons relating thereto, if any, shall be deposited in the Registry at Ottawa
and it shall be entered and filed there whereupon section 17.4 of the Act shall
be complied with.
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167.
(1) Dans le cas d’un appel, d’une requête interlocutoire ou de toute autre
demande ayant pour objet de statuer au fond, en tout ou en partie, sur un
droit en litige entre les parties, la Cour rend un jugement et, dans le cas de
toute autre demande ou requête interlocutoire, elle rend une ordonnance.
(2)
Le jugement est daté du jour de la signature, qui constitue la date du
prononcé du jugement.
(3)
Le jugement et les motifs qui le fondent, le cas échéant, doivent être
déposés au greffe à Ottawa; après le dépôt et l’inscription du jugement, les
dispositions de l’article 17.4 de la Loi seront appliqués.
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[6]
The reference in
subsection 167(3) of the General Procedure Rules to “section 17.4 of the
Act” is a reference to section17.4
of the Tax Court of Canada Act, R.S.C. 1985, c. T-2, which requires
judgments to be mailed to each party. Section 17.4 reads as follows:
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17.4
When
the Court has rendered its judgment in a proceeding in respect of which this
section applies, a copy of the judgment and any written reasons for it shall
be sent to each party to the proceeding.
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17.4
Dès
que la Cour rend son jugement, une copie — y compris, le cas échéant,
l'énoncé des motifs — est envoyée à chacune des parties.
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[7]
Although section 167
of the General Procedure Rules does not stipulate the time within which
a signed judgment should be deposited in the registry and entered, the obvious
implication is that those steps should occur immediately, which generally means
the date of signing or, if that is impossible, then on the next business day.
Similarly, the intention of section 17.4 of the Tax Court of Canada Act
is that a copy of the signed judgment should be mailed as soon as possible.
[8]
In this case, the
judgment sought to be appealed was signed on August 29, 2008, which was a
Thursday. There is no evidence as to when the judgment was deposited in the registry
and entered, and no evidence as to whether Canada Trustco attempted to obtain
that information. In the absence of any evidence to the contrary, it must be
presumed that the judgment was deposited in the registry and entered on the day
it was signed, August 29, 2008. It follows that August 29, 2008 marks the
beginning of the appeal period referred to in paragraph 27(2)(b) of the Federal
Courts Act. Therefore, I would conclude prima facie that when the
notice of appeal was filed on October 8, 2008, the time for appealing had
expired.
[9]
Counsel
for Canada Trustco says that its copy of the judgment bears a date stamp
indicating that it was entered on September 8, 2008. Counsel is mistaken. The
stamp to which he refers does not signify the date on which the judgment was
entered. Rather, it signifies that on September 8, 2008, an officer of the
registry of the Tax Court of Canada certified that the copy to which the stamp
was affixed was a true copy of the original judgment filed of record in the
registry.
[10]
The stamp
reads as follows:
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I HEREBY CERTIFY that the above
document is a true copy of the original filed of record in the registry of
the Tax Court of Canada.
Je
CERTIFIE que le document ci-dessus est une copie conforme
à
l’original déposé au greffe de la Court canadienne de l’impôt.
Dated / Fait le SEP 08 2008
[signed] Sophie Roy
For the Registrar / Pour le
Greffier
SOPHIE ROY
Receptionist and Operational
Support Clerk /
Réceptionniste et commis
de soutien opérationnel
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[11]
Does it matter, for
the purposes of determining the appeal deadline under paragraph 27(2)(b)
of the Federal Courts Act, that the appellant did not receive a copy of
the judgment until September 10, 2008? In my view, it does not. The evidence
submitted by Canada Trustco indicates that 8 weekdays elapsed between the date of
the judgment and the date on which counsel for Canada Trustco received a copy
of the judgment by mail. There is no evidence to explain this fact, and no
evidence that Canada Trustco attempted to obtain an explanation. It may be that
the mailing did not occur immediately, or it may be that the mail itself was
slow. However, for the purposes of determining the appeal deadline under
paragraph 27(2)(b) of the Federal Courts Act, the date on which
the judgment was mailed and the date on which the mailed copy was received are
not relevant. As I read paragraph 27(2)(b), Parliament did not intend
that the commencement of the appeal period would be determined on either basis
(compare section 18.1 of the Federal Courts Act, which provides that the
time for filing an application for judicial review of a decision is determined
by reference to the date on which the decision is first communicated).
[12]
Does it matter, for
the purposes of determining the appeal deadline under paragraph 27(2)(b)
of the Federal Courts Act, that the Crown received a copy of the judgment by
email some days before Canada Trustco received its copy by mail? In my view, it
does not. Again, there is no evidence to explain this fact, and no evidence
that Canada Trustco attempted to obtain an explanation. It may be that the
Registry should have sent Canada Trustco or its counsel a copy by email at the
same time that it sent an email to the Crown, but perhaps that is not so.
Perhaps counsel for Canada Trustco had not arranged to receive communications
from the Tax Court by email. Perhaps an email communication was attempted but
failed. In any event, as I read paragraph
27(2)(b) of the Federal Courts Act, the fact that parties may
have received copies of the judgment at different times is not relevant to the
determination of the appeal deadline set out in paragraph 27(2)(b) of
the Federal Courts Act.
[13]
For these reasons, I
conclude that the notice of appeal was filed outside the time permitted by
paragraph 27(2)(b) of the Federal Courts Act. The issue now is
whether the time should
be extended to permit this appeal to continue.
[14]
In
determining whether to grant an extension of time to appeal a judgment, all relevant circumstances must be
considered. It is generally accepted that the most useful guide is found in the
four questions posed in Grewal
v. Canada (Minister of
Employment & Immigration), [1985] 2 F.C. 263 (F.C.A.): (1) Has
there been a continuing intention to appeal? (2) Is there an arguable case on
appeal? (3) Has the respondent been prejudiced by the delay? (4) Is there a
reasonable explanation for the delay? The weight to be given to each of these
factors will vary with the circumstances of each case.
[15]
The
Crown concedes that the delay has not caused any prejudice and that all of the
criteria for granting extension of time are met, except for Canada Trustco’s
explanation for the delay. The Crown relies particularly on the expression of
the fourth question stated in Karon Resources Inc. v. Canada (1993), 71
F.T.R. 232, [1994] 1 C.T.C. 307 (F.C.T.D.), as quoted in Pharmascience Inc.
v. Canada (Minister of Health), 203 FCA 333 at paragraph 6, which refers to
“special circumstances” justifying the delay. The Crown argues that there are
no such special circumstances in this case.
[16]
In
my view, the expression of the fourth Grewal question adopted in Karon
Resources and Pharmascience does not represent a change in the
applicable principle. In this case, the explanation for the delay is counsel’s
misinterpretation of the date stamp. In my view, that is a reasonable
explanation, particularly when it is considered in light of the very short
duration of the delay. The extension of time will be granted.
[17]
No
costs will be awarded on this motion.
“K. Sharlow”
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