Adrien Meunier v. Minister of National Revenue, [1971] CTC 196, 71 DTC 5119

NOËL, J.:—Appellant asks by motion for extension of the time allowed for bringing an appeal to this Court from the assessment in respect of his income for two months in 1965 as well as for the years 1966 and 1967 and the first few months of 1968; this delay for appeals expired 90 days after September 22, 1970, the date on which appellant’s notice of objection was dismissed and he was informed of this by letter.

Appellant submits that he was unable to lodge an appeal within the 90-day time limit specified in Section 60(2) of the Income Tax Act since he was absent from his residence because of serious nervous disorders and cardiac insufficiency, numbness in his arms and legs and stomach pains. He further claims that respondent’s letter of September 22, 1970 (relating to the notice) went astray in the mail of his son-in-law, who has a large business, and the appellant was only made aware that his objection had been dismissed in the early part of December 1970. As he was partly bedridden and could not get out to see to his affairs, appellant instructed Jean-Paul Cartier, his accountant, to obtain a solicitor to institute his appeal to this Court. Mr. Cartier unfortunately became ill on December 7, 1970; hospitalized at the Hotel-Dieu de Montréal, he was operated on by Dr. Jean Charbonneau on December 10, 1970 for a hernia and removal of a kidney. He was unable to return home until December 21, 1970, and only then with strict orders to rest. Appellant states that he, for his part, began to suffer cardiac disorders in November, which became worse until, on December 25, 1970, he was admitted to the Sacré-Coeur Hospital in Cartierville as an emergency case, and that he remained there from December 26, 1970 to January 9, 1971 being treated for these disorders. In addition to the latter, appellant also suffers from arteriosclerosis and has continual pains in his legs and arms. Appellant submits that he filed his motion for an extension of time as soon as circumstances permitted; he also claims that he has good grounds for appealing to this Court, because his income was unfairly and arbitrarily assessed contrary to the Income Tax Act and the Judges Act. He states that the single payment for a 27-month period made in accordance with the respondent’s decision, for which no reasons were given, could not, in his view, be taxable and assessed as having been earned in a single calendar year, i.e. 1968.

The motion is accompanied by two sworn medical certificates— one from Dr. Maurice Doray, cardiologist at the Sacred Heart Hospital in Montreal, and other, attesting to the state of health of appellant’s accountant, from Dr. Jean Charbonneau, surgeon. Dr. Doray supports appellant’s statement as to the state of his health between December 1970 and January 1971. Significantly, he points out that appellant went into hospital on December 26, 1970 and remained there until January 9, 1971 inclusive, spending five days during this period in intensive care. He found that appellant was suffering from acute coronary deficiency, and states that he prescribed a period of rest at home until February 2, 1971, adding

. . . we saw him on 2/2/71, and noted that he is now in satisfactory condition; we will see him again for a further examination;

Appellant’s counsel, Mr. Schecter, stated that appellant was anxious to be present in Court when his motion was introduced, but that this was impossible since, because of another heart attack, he had had to re-enter the hospital, where he is still under intensive care. Respondent’s counsel, Mr. Gaétan Drolet, stated that he had no objection to appellant’s motion and would leave the whole matter for the Court to decide.

It appears to me that the circumstances in which appellant was placed during the period prescribed in Section 60(2) of the Income Tax Act are such as to indicate that, on account of an incapacitating illness, appellant was unable to institute his appeal to this Court in the time required, as set out in Section 61A(4) of the Income Tax Act and that, consequently, the Court may in this case “make an order extending the time for appealing and may impose such terms as it deems just’’. It further appears that appellant has reasonable grounds for bringing an appeal against his assessment.

I am also of the opinion that a period of 60 days from the date of the order extending the time for appealing would be reasonable to lodge an appeal from the assessment to this Court.

The Court therefore issues an order extending the time for 60 days from the date of this order, during which time appellant may bring an appeal concerning his assessment for the years in question. Costs to follow.