The Minister of National Revenue v. D Stanley Macdonell, James Ryan, Erich Kothke, Johann Martin, William R Lange, David B Delmore, Michel Dube, Perry T Harron, Wolfe Latell and Cecil Blakely, [1984] CTC 2279, 84 DTC 1258

Christie, CJTC:—These are ten applications to quash appeals which were heard together by agreement. What is essential to the determination of the issue is the same in each case.

At different dates between April 10, 1981, and June 15, 1981, inclusive, an assessment was made in respect of each respondent’s 1980 taxation year by including in their income certain expenses which had been reimbursed to them by their employer. Notices of objection to these assessments were served on the applicant in compliance with subsections 165(1) and (2) of the Income Tax Act (“the Act”). The applicant confirmed all of the assessments and on January 29, 1982, he notified each respondent of his action by registered mail pursuant to subsection 165(3) of the Act. January 29, 1982, is the crucial date because what must be determined is whether there is jurisdiction in this Court to hear the ten appeals which were launched after the Minister notified the respondents of the confirmation of his assessments.

Paragraph 169(a) of the Act provides that where a taxpayer has served notice of objection to an assessment under section 165, he may appeal to the Tax Court of Canada to have the assessment vacated or varied after the Minister of National Revenue has confirmed the assessment, but no appeal may be instituted after the expiration of 90 days from the day notice has been mailed to the taxpayer under section 165 that the Minister has confirmed the assessment. The 90 days is to be calculated in accordance with section 25 of the Interpretation Act, R.S.C. 1970, c. 1-23. This section provides, inter alia, that in calculating the 90 days, January 29, 1982, shall not be included. Applying that formula, the appeals should have been instituted not later than April 29, 1982. The Act is silent regarding what constitutes instituting an appeal within the meaning of paragaph 169(a). This is another of the inexplicables of the legislation. Subsection 14(1) of the Tax Court of Canada Act and section 2 of the Rules of Practice and Procedure applicable to the Court deal with appeals to it, but what is said there is confined to the form of the notice of appeal and giving of an address for service. Compare, for example, subsections 165(1) and (2) and subparagraph 175( l)(a)(i) of the Act. The subsections provide that a taxpayer who objects to an assessment may, within 90 days from the day of mailing of the notice of assessment, serve on the Minister of National Revenue a notice of objection and that service shall be effected by being sent by registered mail addressed to the Deputy Minister of National Revenue for Taxation at Ottawa. The subparagraph provides that in the case of an appeal by a taxpayer to the Federal Court—Trial Division, it shall be instituted in the manner set forth in section 48 of the Federal Court Act. Subsection 48(1) reads:

48 (1) A proceeding against the Crown may be instituted by filing in the Registry of the Court a document in the form set out in Schedule I to this Act.

While the Act is definite regarding what constitutes serving a notice of objection or instituting an appeal by a taxpayer to the Federal Court—Trial Division, that is lacking with respect to appeals to this Court.

In my opinion the interpretation most favourable to an appellant which can be placed on paragraph 169(a) and the one which I am willing to adopt is that an appeal is instituted thereunder on the day the evidence establishes as being the day the notice of appeal was mailed to the Tax Court of Canada or its Registrar or placed in the hands of a licensed commercial courier service for delivery to either of those destinations. It does not necessarily have to be sent by registered mail.

There are a number of decisions of the predecessor to this Court, the Tax Review Board, which held that an appeal was not instituted within the 90 day period because the evidence established that the notice of appeal was sent by registered mail or ordinary mail after that time. The obvious implication of these decisions is that, if the notice of appeal had been mailed within the 90 days, the statutory requirement would have been regarded as having been complied with. Exemplary of what I am alluding to is Thomson v MNR, [1972] CTC 2064; 72 DTC 1069; A A Wurz v MNR, [1972] CTC 2293; 72 DTC 1238 and G E Hofer v MNR, [1972] CTC 2293; 72 DTC 1241. In Lepore v MNR, [1979] CTC 2713; 79 DTC 294, Cardin, TCJ, who was then Chairman of the Tax Review Board heard an appeal in which counsel acting on behalf of the Minister of National Revenue raised a preliminary objection to the appeal based on the fact that, although the notice of appeal had been delivered to a courier service within the 90 day period for transmission to the Tax Review Board, it was not received by the Board until the 91st day following the Minister’s confirmation of his assessment. Judge Cardin dismissed the preliminary objection and held that the taxpayer had complied with paragraph 19(a) by placing his notice of appeal with the courier service within the 90 day period.

Affidavits filed in support of each application stated that the notices of appeal are all postmarked April 30, 1982, and were received by the Tax Review Board on May 4, 1982. This evidence was not contradicted. Indeed Mr Thachuk, who appeared for the respondents, volunteered that the institution of the appeals was one day later. Regardless of the propinquity of the steps taken to appeal to the expiration of the 90 day period, this Court is without jurisdiction to hear an appeal which is not instituted before that period has elapsed. The right of appeal granted by paragraph 169(a) is purely statutory and, if it is to be invoked, the conditions pertaining thereto must be strictly complied with. If that is not done, then this Court is without jurisdiction. For this Court to add even one day to the 90 day period would be tantamount to rewriting paragraph 169(a) which, of course, it cannot do. There is ample authority for my conclusion: Horowitz v MNR, [1962] CTC 17; 62 DTC 1038, MNR v Simard, [1962] CTC 310; 62 DTC 1192 and Maclsaac v The Queen, [1983] CTC 213; 83 DTC 5258.

The respondents might have made application after April 30, 1982, for an order extending the time within which to institute the appeals as provided by section 167 of the Act, but the time for pursuing that course of action has long since passed.

The applications are granted.

Applications granted.