Kamal Mydean v. Her Majesty the Queen, [1995] 2 CTC 2637, 96 DTC 1984

Kempo J.T.C.C.:-This is a motion brought by Kamal Mydean for an extension of time to file his notice of appeal to the Federal Court of Appeal from a decision of this Court pursuant to Rule 27(2) of the Federal Court Act.

Mr. Mydean gave viva voce evidence respecting his application. The trial concerning his tax liability for the 1988 and 1989 taxation years was heard on October 3 and 4, 1994. He said he testified on his own behalf during this time, that after the trial was over the presiding judge orally dismissed his appeals with costs, that he could not specifically recall if reasons were given at that time and that when he left he did not understand what the judgment meant nor whether he had won or lost.

Mr. Mydean confirmed receipt of a formal judgment of the Court on or about October 29, 1994. The judgment bears the date October 12, 1994 and provides that the appeals were dismissed with costs. Mr. Mydean said as he was still unsure of its meaning he spoke to a lawyer in Saint John on November 24, 1994 who may have told him then that he was late for an appeal. He paid a consulting fee of $15 and gave two cheques, one dated November 24, 1994 for $400 and another dated November 30, 1994 of $350 ostensibly to cover the cost of the transcript and some legal fees.

Mr. Mydean did not have a transcript of the proceedings in the Tax Court with him nor any documents in the nature of cancelled cheques. He said he could not remember receiving any transcript from his lawyer even though he had paid for it. I believe him when he says that he consulted the lawyer, that he issued the aforenoted cheques, and that once he actually understood he had lost his case he indicated he wanted to appeal. In his letter to the Court dated March 14, 1995 Mr. Mydean stated:

I had approached Mr. Teed to get the transcript from the Tax Court on or around November 24, 1994, presuming that I would have 90 days to appeal to the Federal Court. Mr. Teed had received the transcript and wrote to me about what had inspired [sic] at the Tax Court and suggested to me that I should appeal the case without further delay as per his letter dated January 23, 1995 which was received by me on January 25, 1995.... On January 25 I had written to the Tax Court of Canada in Ottawa Ontario for guidance in regard to the appeal.

Rule 27(2) provides that the appeal period of 30 days commences from the date of "pronouncement of the judgment" which, according to Rule 167(2) of the Tax Court of Canada Rules (General Procedure), is the date it is signed. In this case it was signed October 12, 1994 so the 30-day appeal period expired on or about November 12, 1994. As noted earlier, Mr. Mydean received the formal judgment in the mail about October 19, 1994. He testified that much of his time thereafter was taken up by his wife’s illness and that in any event he could not afford a lawyer before November 24, 1994. All of the evidence points to the conclusion that Mr. Mydean had actually formulated an intention to appeal on January 25, 1995.

According to its letter to this Court dated April 4, 1995, the Crown opposed Mr. Mydean’s application for the sole reason that no reasonable grounds for an appeal were disclosed.

As Mr. Mydean did not bring the transcript of the Tax Court proceeding or even some sort of legal opinion, I am unable to determine, or shed any light on, whether his proposed appeal raises any arguable issues. Apparently his tax appeal involved factual issues concerning the deduction and/or proof of business expenses, but there is nothing more than that to go upon. He did say in his March 14, 1995 letter to the Court that:

I was under the impression that the judge had the knowledge about my case. It was too late when I realized that the judge does not go through any of the documents I had prepared ahead of time for evaluation which was mailed to the Tax Court of Canada as list of documents.

He did confirm that he had had all the documentary evidence needed by him for his trial, and that he had testified.

In my view it is the absence of any arguable or known grounds for appeal which causes me to find that the interests of justice do not favour the granting of an extension. I do believe the other matters of relevance, i.e., special circumstances, want of prejudice, formulation of an intention to appeal and reasons for delay have all been favourably explained. However Mr. Mydean’s total failure to address the merits underlying his appeal, especially when this was clearly put in issue by the Crown, is fatal to his application. See, for example, Karon Resources Inc. v. Canada, [1994] 1 C.T.C. 307 at 309, 71 F.T.R. 232 at 235 (F.C.T.D.).

Accordingly the application for an extension of time fails and is dismissed.

Application dismissed.