Tax Court of Canada Judgments

Date: 19980904

Docket: 98-174-UI

BETWEEN:

PAULA MacKINNON,

Applicant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for Order

Sarchuk, J.T.C.C.

[1]This Court has before it motions by Paula MacKinnon (the Applicant) and the Minister of National Revenue (the Minister).

[2]The Applicant is seeking, inter alia,

(a) an Order pursuant to sections 12 and 13 of the Tax Court of Canada Act and/or Rule 27 of the Tax Court of Canada Rules of Procedure Respecting the Employment Insurance Act, (the Tax Court - UI Rules) extending the time within which a Notice of Appeal may be filed, and

(b) for an Order that the Notice of Appeal dated October 24, 1997 filed on behalf of the Applicant and/or the Notice of Appeal dated February 17, 1998, filed on behalf of the Applicant be considered valid appeals pursuant to subsection 70(1.1) of the Unemployment Insurance Act and/or subsection 103(1) of the Employment Insurance Act.

[3]The Minister is seeking an Order:

(a) dismissing the Appellant’s appeal on the basis that it was filed with the Tax Court of Canada beyond the 90-day period specified in section 70 of the Unemployment Insurance Act; and

(b) in the alternative, dismissing the Applicant’s request for an extension of time to file an appeal on the basis that it was filed with the Tax Court of Canada beyond the 90-day period specified in section 5(1) of the Tax Court - UI Rules; and

(c) in the further alternative, extending the time within which the Reply to the Notice of Appeal may be filed.

[4]The motions were heard on the basis of affidavits submitted by the Applicant, her solicitor, Theresa Marie Forgeron (Forgeron), and Patrick LaRusic, an officer of the Department of National Revenue.

[5]There is virtually no dispute as to the facts. The Applicant had requested a determination on the insurability for unemployment insurance purposes of her employment with Island Inn Limited for the period September 25, 1994 to September 22, 1995, as well as from October 21, 1995 to October 18, 1996. Following an adverse initial ruling from Revenue Canada, the Applicant appealed. The chief of appeals of Revenue Canada confirmed the determination by letter dated October 7, 1997. Details on how to initiate an appeal were provided to the Applicant by way of an attached form entitled “How to Appeal to the Tax Court of Canada".

[6]On October 23, 1997, the Applicant instructed her solicitor to appeal the decision. A Notice of Appeal was drafted on October 24, 1997 and on October 29, 1997, Forgeron requested a member of her staff to hand-deliver the document to the local office of Human Resources Development Canada (HRDC). By letter to HRDC dated January 22, 1998, Forgeron inquired regarding the status of the appeal. She further states that on or about February 11, 1998, she realized that she had mistakenly filed the Notice of Appeal with the local office of HRDC and not with the Tax Court of Canada. On February 17, 1998, Forgeron forwarded to the Tax Court of Canada a further Notice of Appeal[1] together with a covering letter “in order to rectify” what was referred to by her as “an inadvertent error”.

Statutory Provisions

[7]The Unemployment Insurance Act provides:

70(1) The Commission or a person affected by a determination by, or a decision on an appeal to, the Minister under section 61 may, within ninety days after the determination or decision is communicated to him, or within such longer time as the Tax Court of Canada on application made to it within those ninety days may allow, appeal from the determination or decisions to that court in the manner prescribed.

The Tax Court - UI Rules relating to instituting appeals provide:

2 In these Rules

“Registry” means the principal office of the Court at 200 Kent Street, 2nd floor, Ottawa, Ontario. K1A 0M1 (telephone: (613)992-0901, fax: (613) 957-9034), or any other office of the Court at

MONTREAL TORONTO    VANCOUVER

... ... ...

3 These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every appeal on its merits.

5(1) An appeal by an Appellant from a decision on an appeal to the Minister shall be instituted within the time period set out in subsection 103(1) of the Act which is 90 days after the decision is communicated to the Appellant, or within such longer time as the Court may allow on application made to it within those 90 days.

5(5) An appeal shall be instituted by filing in, or mailing to, a Registry the original of the written appeal referred to in subsection (1).

26(1) Unless otherwise provided in these rules, service of any document provided for in these rules shall be effected by personal service or by mail or by fax addressed

(a) in the case of the Court or the Registrar, to a Registry,

(b) in the case of the Minister, to the Deputy Minister of National Revenue, Ottawa, Ontario, K1A 0L5

...

27(1) Failure to comply with these rules shall not render any proceedings void unless the Court so directs, but such proceedings may be set aside either in whole or in part as irregular and may be amended or otherwise dealt with in such manner and upon such terms as, in the opinion of the Court, the circumstances of the case require.

27(3) The Court may, where and as necessary in the interests of justice, dispense with compliance with any rule at any time.

The Tax Court of Canada Act provides:

18.15(1) An appeal referred to in section 18 shall be made in writing and shall set out, in general terms, the reasons for the appeal and the relevant facts, but no special form of pleadings is required unless the Act out of which the appeal arises expressly provides otherwise.

18.15(3) An appeal referred to in section 18 shall be instituted by filing in, or mailing to, an office of the Registry of the Court the original of the written appeal referred to in subsection (1).

18.29(1) The provisions of sections 18.14 and 18.15, paragraph 18.18(1)(a), section 18.19, subsection 18.22(3) and sections 18.23 and 18.24 apply, with such modifications as the circumstances require, in respect of appeals arising under

...

(b) Parts IV and VII of the Employment Insurance Act;

...

Applicant’s Position

[8]The Applicant does not dispute that the relevant legislation, subsection 70(1) of the UI Act, requires an appeal to the Tax Court of Canada to be filed in the manner prescribed within 90 days after the determination is communicated to the person affected thereby and that the combined effect of Rule 5(5) and Rule 26(1)(a) is that the prescribed manner for instituting an appeal is by filing in, or mailing to, a Registry the form of Notice of Appeal set out in schedule V. The Applicant concedes that this was not done until after the 90-day limitation had passed; however, she contends that a Notice of Appeal had previously been filed with the relevant government department, HRDC, well within the 90-day limitation period.

[9]It is the Applicant’s position that under Rule 27(3), this Court has the jurisdiction to waive compliance with any of the other Rules, in this case Rule 5(5), where it is in the interests of justice to do so. Counsel specifically relies on two decisions of this Court in which the Rule requiring the payment of a filing fee to institute an appeal under the Tax Court of Canada Rules (General Procedure) was dispensed with pursuant to Rule 9 of those Rules, which Counsel argued is the equivalent of Rule 27(3) of the Tax Court - UI Rules.[2]

[10]Counsel for the Applicant further argues that she has clearly demonstrated her continuing intention to appeal by appealing the initial ruling of March 10, 1997 to the Chief of Appeals and by instructing her solicitor within two weeks of receiving the decision of the Chief of Appeals to institute a further appeal. Through inadvertence, her appeal was filed in the wrong place and no one there informed the Applicant or her solicitor that was the case. Counsel contends that if this application is unsuccessful, it is likely that the Applicant will be denied the ability to present her case to this Court and this would not serve the interests of justice.

Respondent’s Position

[11]It is the Respondent’s position that the prescribed manner of filing a Notice of Appeal is not just a question of compliance with the Rules but is also a question of compliance with the provisions of the Tax Court of Canada Act. In particular, Counsel referred to subsection 18.15(3) and argued that while the Court is given the authority by the Rules to waive a requirement thereof, it has no authority to waive a statutory requirement. Section 70 of the UI Act provides that “the appeal must be filed in the manner prescribed” and subsection 18.15(3) of the Tax Court of Canada Act does just that.

Conclusion

[12]The Applicant asks this Court to use its authority under Rule 27(3) to waive compliance with Rule 5(5) and to accept the filing of a Notice of Appeal with HRDC as an effective institution of her appeal. However, Rule 5(5) does not stand alone. Rather, it mirrors (duplicates, if you will) the requirements of the Tax Court of Canada Act, more specifically, subsection 18.15(3) which provides that appeals “shall be instituted by filing in, or mailing to, an office of the Registry of the Court the original of the written appeal ...”. Furthermore, subsection 18.29(1) of that Act provides, inter alia, that section 18.15 applies to appeals to this Court under the Unemployment Insurance Act.

[13]Counsel for the Applicant argued that subsection 18.15(3) does not apply in the present situation. He referred to subsection 18.29(2) of the Tax Court of Canada Act which reads:

18.29(2) Where an appeal arises out of one of the Acts referred to in subsection (1) and that Act contains a provision that is inconsistent with one of the provisions of this Act referred to in that subsection, the provision of the Act out of which the appeal arises prevails to the extent of the inconsistency.

and contended that:

... what is crucial here is section 70(1) and 103(1) of the Unemployment Insurance and Employment Insurance Acts, respectively, and therefore the statutory requirement that my learned friend is suggesting really does not apply in this situation. And therefore that just brings us back to the arguments I made initially, Your Honour, that it really comes back to those sections of the U.I. Act and how those interact with the Rules prescribed for these sorts of appeals. ...

With respect, I am unable to find any merit in this submission.

[14]I agree with the Respondent’s position that the relief sought by the Applicant cannot be granted by this Court. Although Rule 27(3) authorizes this Court, in the interests of justice, to dispense with compliance of any Rule at any time, compliance with subsection 18.15(3) of the Tax Court of Canada cannot be waived because it is a statutory provision. In Pervais v. The Queen,[3]the Court had before it an application for judicial review of the decision of the Minister with respect to insurability of employment under subsection 70(1) of the Unemployment Insurance Act. Strayer J, speaking for the Court, observed:

While Rule 27 of the Tax Court Rules for Unemployment Insurance appeals, made under the authority of the Tax Court Act, permits that Court to dispense with compliance with any Rule, this clearly does not authorize the Court to alter the statutory conditions for appeal in subsection 70(1) of the Unemployment Insurance Act.

In the absence of a clear statutory authority, this Court does not have the jurisdiction to waive the specific provisions of subsection 18.15(3) of the Tax Court of Canada Act.

[15]The decisions of Judge Bell in both Moss and Reid relied upon by the Applicant involved a taxpayer applying for an Order in forma pauperis dispensing with the requirement to pay Court fees relating to the filing of the appeals. The authority creating the obligation to pay the Court fees is found within the Tax Court of Canada Rules and is not a statutory requirement. Thus, as was observed by Bell J. in holding that it was in the interests of justice to grant the applications, the Court was simply acting within its jurisdiction to dispense with compliance with the Rule requiring the payment of a filing fee.

[16]For these reasons, the Applicant’s motion is denied and the Respondent’s motion is granted and the Applicant’s purported appeal is quashed.

Signed at Ottawa, Canada, this 4th day of September, 1998.

"A.A. Sarchuk"

J.T.C.C.

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