Date: 20021018
Docket: 2002-3203-IT-APP
BETWEEN:
PAUL MARTEK,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Order
Lamarre Proulx, J.T.C.C.
[1] This is an application for an extension of the time within which the Applicant may file with this Court a Notice of Appeal in respect of a reassessment confirmed by the Minister of National Revenue (the "Minister") on March 5, 2002.
[2] The Notice of Reassessment is dated February 27, 1997 and is for the 1993 taxation year. The Applicant filed a Notice of Objection with the Minister on May 27, 1997. On March 5, 2002, the Minister notified the Applicant by registered mail that the reassessment was confirmed.
[3] No appeal was filed with this Court within the time prescribed by paragraph 169(1) of the Income Tax Act (the "Act") for instituting an appeal, which expired on June 3, 2002. An application for an extension of time was filed with this Court on August 22, 2002. It was signed by Mr. Denis E. Bélanger and read as follows:
...
I HEREBY apply for an order extending the time within which an appeal may be instituted. I am referring the 1993 taxation year and the decision following the case law Richard McKeown (2001 DTC 5111).
This contributor is in the process of moving and did not acknowledge receipt of his registered mail. I have, today, received by fax, a copy of the refusal letter date March 18, 2002. Also, please note that Revenue Quebec has proceeded to cease his salary at Air Canada. Your acceptance in this matter would be greatly appreciated and consequent to this contributor's good faith.
Date: August 9, 2002 Denis E. Bélanger
...
[4] The Applicant and Mr. Bélanger testified.
[5] The Applicant is an electrical engineer. He stated that he did not work for Air Canada, that his salary had not been garnisheed and that his address had not changed in some time. All this was completely at odds with what had been declared in the above application.
[6] The application was identical to that made by the Applicant's wife, Kendra Hayden, which had not been opposed by the Respondent and which this Court granted without a hearing, as is its practice.
[7] The Applicant wondered why, in the case of his wife, the application was not opposed and why it was in his own case. The Respondent's representative could not give an answer. He showed, however, that the applications were not filed on the same date and suggested that this may have been a factor in the Minister's decision not to oppose Ms. Hayden's application. Hers was filed on July 31, 2002 while Mr. Martek's was filed on August 20, 2002. There is no doubt that consistency in administrative decisions is a desirable goal. However, as the Court told the Applicant, it was his application that was before the Court and not his wife's.
[8] The Applicant told the Court that he was not aware that he had received his Notice of Reassessment by registered mail. He explained that his wife picked up the two registered letters at the post office and put his in the glove compartment of her car. She forgot about it until the Applicant received another document from the Minister by regular mail. The Applicant stated that he faxed this document to Mr. Bélanger. This document was not produced by either the Applicant or Mr. Bélanger.
[9] The Respondent's representative produced as Exhibit R-1 Ms. Hayden's Notice of Confirmation. It bore the same date as the one for the Applicant, that is, March 5, 2002.
[10] Mr. Bélanger explained that he used a precedent for the applications.
[11] The Applicant argued that the Notice of Confirmation got lost somehow, that the application was filed not very long after the expiry of the time for appealing, that he did not need to read the application and that he trusted Mr. Bélanger, who drafted and filed the application on his behalf.
[12] The Respondent's representative submitted that the version of events given by the Applicant was not plausible. He also submitted that the Applicant showed a lack of diligence in not reading the application made on his behalf.
Conclusion
[13] It is impossible to understand why Mr. Bélanger sent a version of the facts that was completely erroneous. Although that conduct is both extremely annoying and deserving of blame, it will not be the basis of my decision.
[14] I base my decision rather on the Applicant's version of the facts. It is just not credible that the Applicant's wife would have acted on her own Notice of Confirmation that she had picked up at the post office at the same time as she picked up her husband's and that she would have forgotten to mention to him that there was a document similar to hers for him in the glove compartment of the car.
[15] Moreover, the explanations given by the Applicant as to why he was unable to act within the prescribed time attributed his inaction to his wife. However, the Applicant's wife was not present to confirm the Applicant's story. I may thus infer that her evidence would not have been helpful to the Applicant: Lévesque v. Comeau et al, [1970] S.C.R. 1010, R. v. Jolivet, [2000] 1 S.C.R. 751.
[16] To conclude, the evidence has not shown on a balance of probabilities that the Applicant was unable, within the time prescribed by paragraph 169(1) of the Act, to act or to instruct another to act on his behalf as required by paragraph 167(5) of the Act. The application shall be dismissed.
Signed at Ottawa, Canada, this 18th day of October 2002.
|
"Louise Lamarre Proulx" |
J.T.C.C.
COURT FILE NO.: 2002-3203(IT)APP
STYLE OF CAUSE: Paul Martek and Her Majesty the Queen
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: October 9, 2002
REASONS FOR ORDER BY: The Hon. Judge Louise Lamarre Proulx
DATE OF ORDER: October 18, 2002
APPEARANCES:
For the Applicant: The Applicant himself
Agent for the Respondent: Yacine Agnaou, (Student-at-Law)
COUNSEL OF RECORD:
For the Applicant:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
APPLICATION UNDER SECTION 167 OF THE
INCOME TAX ACT (APPEAL)
2002-3203(IT)APP
BETWEEN:
PAUL MARTEK,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Application heard on October 9, 2002 at Montreal, Quebec, by
The Honourable Judge Louise Lamarre Proulx
Appearances
Counsel for the Applicant: The Applicant himself
Counsel for the Respondent: Yacine Agnaou (Student-at-law)
ORDER
Upon application for an Order extending the time within which an appeal, in respect of the reassessment of February 27, 1997 for the 1993 taxation year under the Income Tax Act, may be filed;
The application is dismissed, in accordance with the attached Reasons for Order.
Signed at Ottawa, Canada, this 18th day of October 2002.
|
"Louise Lamarre Proulx" |
J.T.C.C.