Hugessen,
J:—This
is
an
application
for
extension
of
time
in
which
to
bring
a
section
28
application
against
a
decision
of
the
Minister
of
National
Revenue
rejecting
an
application
for
refund
made
under
subsection
44(7)
of
the
Excise
Tax
Act.
The
impugned
decision
was
made
June
29,
1984.
The
present
application
was
filed
September
26,
1984.
The
application
for
extension
of
time
was
not
accompanied,
as
is
sometimes
the
case,
by
the
section
28
application.
Upon
being
advised
of
the
application
for
extension
of
time,
on
October
2,
1984,
I
made
an
order
directing
that
counsel
file
submissions
on
the
question
of
the
jurisdiction
of
the
Court
to
grant
an
extension
of
time
after
the
expiry
of
the
ninety-day
period
provided
by
subsection
44(7.3)
of
the
Excise
Tax
Act.
Those
submissions
have
now
been
received.
Subsection
44(7.3)
of
the
Excise
Tax
Act
reads
as
follows:
Where
the
Minister
rejects
in
whole
or
in
part
an
application
under
subsection
(6),
(7)
or
(7.1)
for
a
refund,
deduction
or
amount,
the
application
ceases
to
have
effect,
for
the
purposes
of
determining
whether
the
refund,
or
deduction
may
be
granted
or
the
amount
may
be
paid,
ninety
days
after
notice
of
the
rejection
is
sent
to
the
applicant,
unless,
within
that
ninety
day
period,
an
application
in
respect
of
the
refund,
deduction
or
amount
is
made
to
the
Tariff
Board
under
section
59
or
to
the
Federal
Court
under
section
28
of
the
Federal
Court
Act.
The
jurisdictional
difficulty,
as
I
saw
it,
arose
from
the
fact
that
this
text
appears
to
create
an
independent
remedy
under
section
28
of
the
Federal
Court
Act
without
regard
to
the
question
of
whether
the
Minister’s
decision
would
otherwise
be
reviewable
under
section
28
and
also
without
regard
to
the
time
limit
imposed
by
subsection
28(2).
If,
of
course,
the
time
limit
of
subsection
28(2)
does
not
apply
to
the
remedy
under
subsection
44(7.3),
it
is
arguable
that
the
power
to
extend
such
time
which
also
flows
from
subsection
28(2)
is
equally
inapplicable.
Some
support
for
this
view
of
the
scope
of
subsection
44(7.3)
may
be
found
in
the
decision
of
this
Court
in
AOCO
v
MNR,
[1984]
CTC
366;
84
DTC
6371.
After
due
consideration,
I
have
concluded
that
it
is
not
necessary
to
reach
the
question
of
the
Court’s
jurisdiction
to
grant
the
extension
of
time
and
that
such
extension
should,
in
any
event,
be
denied
for
other
reasons.
The
material
filed
by
the
applicant
reveals
that:
.
.
.
in
addition
to
the
Applicant’s
application
herein
for
review
of
the
Deputy
Minister’s
subject
decision,
the
Applicant
has
also
made
application
in
respect
of
its
refund
claim
to
the
Tariff
Board
under
section
59
and
within
the
time
require
[sic]
by
subsection
44(7.3)
of
the
Excise
Tax
Act.
(affidavit
of
Stuart
Bishop
Morrow,
dated
September
26,
1984).
Where
the
Tariff
Board
is
seized
of
an
application
under
section
59,
section
60
provides
that
any
declaration
that
it
makes
in
consequence
thereof
may
be
appealed
to
this
Court,
by
leave,
on
any
question
of
law.
Thus,
to
the
extent
that
the
applicant’s
attack
on
the
Minister’s
decision
raises
serious
issues
of
law,
such
issues
can
ultimately
be
resolved
by
this
Court
on
an
appeal
from
the
Tariff
Board;
to
the
extent
that
the
attack
raises
issues
of
fact,
those
issues
are
better
dealt
with
in
the
Tariff
Board
than
in
this
Court.
In
either
case
the
proposed
section
28
application
is
superfluous.
The
granting
of
an
extension
of
time
is
essentially
a
matter
for
the
exercise
of
discretion.
For
the
reasons
stated
and
assuming,
without
deciding,
that
the
Court
has
jurisdiction
to
grant
such
extension,
I
would
deny
the
present
application.
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