2001-1719(EI)APP
2001-1720(CPP)APP
BETWEEN:
RONALD G. ANDERSON,
Applicant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Applications heard on July 15, 2002, at Toronto, Ontario, by
The Honourable D.G.H. Bowman
Associate Chief Judge
Appearances
Counsel for the Applicant: Wayne Anderson
Counsel for the Respondent: Meghan Castle
ORDER
It is ordered that the applications for an extension of time to file notices of objection under the Employment Insurance Act and the Canada Pension Plan be dismissed.
Signed at Ottawa, Canada, this 25th day of July 2002.
|
"D.G.H. Bowman" |
A.C.J.
Date: 20020725
Dockets: 2001-1719(EI)APP
2001-1720(CPP)APP
BETWEEN:
RONALD G. ANDERSON,
Applicant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR ORDER
Bowman, A.C.J.
[1] These two applications were made for the purpose of obtaining an extension of time to appeal to this court from decisions of the Minister of National Revenue under the Canada Pension Plan (the "CPP") and the Employment Insurance Act (the "EIA") that the applicant, Mr. Anderson, was employed under a contract of service by Manorcore Construction Inc. ("Manorcore") and that therefore his earnings were from pensionable and insurable employment.
[2] The applicant finds himself in something of a procedural tangle and it is my task to see whether and to what extent he can be extricated.
[3] The evidence has a few gaps in it but from what I can ascertain it seems the first contact that Revenue Canada (now CCRA) had with Mr. Anderson was a letter of October 5, 1999 relating to his 1997 and 1998 income tax returns in which it was said that he received employment income in 1997 and 1998 from Manorcore. They asked for no representation and stated simply that T4 slips would be prepared and sent to him.
[4] On December 9, 1999, T4 slips for 1997 and 1998 were sent to Mr. Anderson. They show income of $7,549.21 and $25,680.83 respectively from Manorcore. They also show employee's CPP contributions of $212.28 and $812.45, and employee's EI contributions of $218.93 and $693.38. In the letter accompanying the T4 slips it is stated that the employee's EI and CPP contributions are additional income as well as amounts stated to be unreported employment income. Just how unremitted employees CPP and EI contributions constitute additional income is something of a mystery.
[5] It appears from the notice of objection that on January 28, 2000 he was assessed under the Income Tax Act for 1997 and 1998 and on April 11, 2000 he filed a notice of objection to the assessments. The assessments were not put in evidence.
[6] No notification of confirmation or reassessment has been issued.
[7] While all this was going on Manorcore was assessed on February 3, 2000 for CPP and EI contributions. I presume these were assessments under section 85 of the EIA and section 22 of the CPP. On March 6, 2000 the appeals division of CCRA wrote to Mr. Anderson referring to the fact that Manorcore had appealed. Again, I presume these appeals were under section 92 of the EIA and section 27.1 of the CPP.
[8] Also, in the letter of March 6, 2000 the CCRA asked the applicant for information that would assist in determining the question of insurable employment. A questionnaire was enclosed with the letter and it was completed and returned by Mr. Anderson. The completed questionnaire was not put in evidence.
[9] On May 16, 2000 CCRA wrote to Mr. Anderson and informed him that it had been decided to confirm the assessments of Manorcore. The letter also stated that he had 90 days to appeal to the Tax Court of Canada from the decision.
[10] Section 103(1) of the EIA reads:
The Commission or a person affected by a decision on an appeal to the Minister under section 91 or 92 may appeal from the decision to the Tax Court of Canada in accordance with the Tax Court of Canada Act and the applicable rules of court made thereunder within 90 days after the decision is communicated to the Commission or the person, or within such longer time as the Court allows on application made to it within 90 days after the expiration of those 90 days.
[11] Subsection 28(1) of the CPP reads:
A person affected by a decision on an appeal to the Minister under section 27 or 27.1, or the person's representative, may, within 90 days after the decision is communicated to the person, or within any longer time that the Tax Court of Canada on application made to it within 90 days after the expiration of those 90 days allows, appeal from the decision to that Court in accordance with the Tax Court of Canada Act and the applicable rules of court made thereunder.
[12] The applicant took the letter of May 16, 2000 to the St. Catharines District Office of the CCRA. He was told that he did not need to do anything because he had already filed an objection to the assessments. Subsequently he was told he should apply for an extension of time. He filed his application in this court on May 11, 2001, well beyond the time limit specified in subsection 103(1) of the EIA and subsection 28(1) of the CPP. If what he seeks is an extension of time for appealing the Minister's decision under the CPP or the EIA in respect of the appeals of Manorcore I cannot help him. His counsel argued that this court has an inherent jurisdiction to extend the time beyond that permitted under the CPP and the EIA because Mr. Anderson had not been given a hearing. This, it is contended, is contrary to the principles of natural justice and in violation of Mr. Anderson's rights under the Charter. I do not think these arguments really are of much help nor do I think the matter has to be elevated to the level of invoking the Charter. Whatever inherent jurisdiction this court may have it does not extend to ignoring the time limits for appealing set out in the CPP and the EIA. Moreover he was not denied a hearing. The letter of May 16, 2000 told him he could appeal to the Tax Court of Canada and based on advice he received from the CCRA he did not do so.
[13] This entire area of the position of intervenors or possible intervenors in EIA and CPP appeals is murky and requires clarification and this application brings the matter into relief. In the run-of-the-mill EIA or CPP appeal third parties who may be affected are informed of the Minister's decision and are invited to participate. If the appellant is an employer or alleged employer the employees are informed of the decision and are invited to participate. If the appellant is an employee the employer is entitled to intervene. There is no particular consensus that I have been able to discern whether an intervenor becomes a party who acquires a status that would permit him or her to prosecute an appeal irrespective of any consent judgment or discontinuance in the appellant's case. The CPP and the EIA accord to persons affected by the Minister's decision certain rights. The decision of the Federal Court of Appeal in A.G. Canada v. Blais, 64 N.R. 378, sheds very little light on the question.
[14] In this case the applicant, Mr. Anderson, had a right to appeal to the Tax Court of Canada under section 103 of the EIA and section 28 of the CPP. He did not do so. However the Minister has issued assessments for 1997 and 1998 under the Income Tax Act (the "ITA"). It is interesting that neither the ITA nor the EIA nor the CPP contains any mechanism for assessing employees for employee contributions under the CPP or the EIA. Section 85 of the EIA permits the Minister to assess an employer for amounts payable by the employer under the EIA and this would presumably include the employee's premiums under section 67 and the employer's premiums under section 68 both of which are payable by the employer to the Receiver General under paragraph 82(1)(b). Substantially the same statutory scheme applies with respect to the CPP and it is found in sections 21 and 22 of the CPP. Also section 32 provides for the assessment of contributions on self-employed earnings.
[15] Mr. Anderson's main concern is not the EIA and CPP contributions which are relatively small. It is the amount added to his income as employment income by the assessments for 1997 and 1998. His position is that the amounts were not employment income but rather were business income and that he has expenses to offset them.
[16] He is in my opinion completely protected in this regard. He has filed a valid objection to those income tax assessments. The Minister has not responded to his objection and since 90 days have elapsed since the filing of the objection he has a clear right to appeal to this court from those assessments under paragraph 169(1)(b) of the ITA. His failure to appeal to this court from the Minister's decision on Manorcore's appeal does not constitute a bar to his right of appeal from the assessments under the ITA. No principle of estoppel, waiver, laches, acquiescence or any other principle of law of which I am aware operates to deprive him of his clear statutory right of appeal and in such an appeal he will be entitled to challenge the quantum and nature of the amounts included in his income as employment income. If he is successful in having the income tax assessments vacated or varied this will obviously affect the EIA and CPP contributions, if any, payable by him and they can be dealt with in any subsequent assessments.
[17] The applications to extend the time for appealing from the Minister's decisions under the EIA and CPP are dismissed.
Signed at Ottawa, Canada, this 25th day of July 2002.
|
"D.G.H. Bowman" |
A.C.J.
COURT FILE NOS.: 2001-1719(EI)APP, 2001-1720(CPP)APP
STYLE OF CAUSE: Between Ronald G. Anderson and
The Minister of National Revenue
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 15, 2002
REASONS FOR ORDER BY: The Honourable D.G.H. Bowman
Associate Chief Judge
DATE OF ORDER: July 25, 2002
APPEARANCES:
Counsel for the Applicant: D. Wayne Lalonde, Esq.
Counsel for the Respondent: Meghan Castle
COUNSEL OF RECORD:
For the Applicant:
Name: D. Wayne Lalonde, Esq.
Firm: Toronto, Ontario
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada