COMPUTER HOSPITAL INC., applicant, v. THE MINISTER OF NATIONAL REVENUE,, 2012 TCC 28

Dockets: 2010-311(EI)APP 2010-312(CPP)APP BETWEEN: COMPUTER HOSPITAL INC., applicant, and THE MINISTER OF NATIONAL REVENUE, respondent . ____________________________________________________________________ Application heard on March 25, 2011, at Toronto , Ontario. Before: The Honourable Justice Gaston Jorré Appearances : Agent for the applicant: Silverio Ferrari Counsel for the respondent: Sandra K.S.

Tsui ____________________________________________________________________ JUDGMENT Upon considering the application for an order extending the time within which appeals from the assessments made under the Employment Insurance Act and the Canada Pension Plan may be instituted; And upon hearing the parties; In accordance with the attached reasons for judgment, the application is dismissed. Signed at Winnipeg , Manitoba , this 20th day of January 2012. ​Gaston Jorré​ Jorré J.

Citation: 2012 TCC 28 Date: 20120120 Dockets: 2010-311(EI)APP 2010-312(CPP)APP BETWEEN: COMPUTER HOSPITAL INC., applicant, and THE MINISTER OF NATIONAL REVENUE, respondent. REASONS FOR JUDGMENT Jorré J.

Introduction [ 1 ] This is an application to extend the time to file notices of appeal with respect to assessments for employment insurance (EI) and Canada Pension Plan ( CPP ) premiums. [1] [ 2 ] The evidence in this matter consisted of the testimony of Silverio Ferrari, the sole shareholder and the sole director of the applicant, the affidavit and supplementary affidavit of Danny Ducas and the affidavit and supplementary affidavit of Scott Cowell as well as three exhibits. [2] [ 3 ] When one reviews all the evidence, it eventually emerges that the applicant is applying for an extension in relation to: (

a) an assessment dated March 20, 2002 of unremitted EI and CPP premiums in the amount of $4,704 (plus penalty and interest thereon) in respect of the 2001 taxation year; (

b) an assessment dated March 20, 2002 of unremitted EI and CPP premiums in the amount of $392 (plus penalty and interest thereon) in respect of the 2002 taxation year; [3] (

c) an assessment dated January 8, 2007 of unremitted EI premiums in the amount of $66.53 (plus interest thereon) in respect of the 2003 taxation year; (

d) an assessment dated January 8, 2007 of unremitted EI premiums in the amount of $107.42 (plus interest thereon) in respect of the 2004 taxation year. Both of the January 8, 2007 assessments relate to Roman Kowalczuk. [4]

The two March 20, 2002 assessments [ 4 ] Under

section 92 of the Employment Insurance Act ( EIA ), an employer who has been assessed for EI premiums may appeal to the Minister of National Revenue (Minister) for reconsideration of the assessment within 90 days after being notified of the assessment. The same is true under

section 27.1 of the CPP . [ 5 ] With respect to the first two assessments dated March 20, 2002, the applicant filed, on or about March 30, 2007, a notice of objection dated September 10, 2006. The Minister wrote back by letter dated August 21, 2008 and stated that he did not accept the objection because it was out of time. [5] [ 6 ] Under subsection 103(1) of the EIA , a person who is affected by a decision on an appeal to the Minister under

section 92 may appeal from the Minister​s decision to this Court.

Subsection 28(1) of the CPP is essentially the same. [ 7 ] The letter of August 21, 2008 from the Minister stating that he did not accept the objection is not a decision. [6] [ 8 ] Given that, and given that the appeal right created in subsection 103(1) is a right to appeal from the Minister​s decision, there is nothing which can be appealed to this Court and therefore nothing in respect of which a time extension application could be granted. [7] The same result is true under subsection 28(1) of the CPP . [ 9 ] Accordingly, the time extension application in respect of the March 20, 2002 assessments must be dismissed. [8] The two January 8, 2007 assessments [ 10 ] On October 19, 2006 the Minister sent to the applicant a letter ruling that Mr.

Kowalczuk was an employee. At trial the applicant agreed that it did not bother appealing that ruling. [9] [ 11 ] The two assessments of January 8, 2007 were for a total of about $174 plus interest. There is nothing in the evidence showing that the applicant appealed these two assessments to the Minister under

section 92 of the EIA . [11] [ 12 ] As explained above there cannot be a valid appeal to this Court in the absence of a decision by the Minister. Accordingly and for the same reasons as with respect to the March 20, 2002 assessments, there is nothing which can be appealed to this Court and therefore nothing in respect of which a time extension application could be granted. [10] [ 13 ] The application in respect of the January 8, 2007 assessments will also be dismissed. Conclusion [11] [ 14 ] For these reasons the application will be dismissed. Signed at Winnipeg, Manitoba , this 20th day of January 2012.

​Gaston Jorré​ Jorré J. CITATION: 2012 TCC 28 COURT FILE NOS.: 2010-311(EI)APP, 2010-312(CPP)APP STYLE OF CAUSE: COMPUTER HOSPITAL INC. v. M.N.R. PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: March 25, 2011 REASONS FOR JUDGMENT BY: The Honourable Justice Gaston Jorré DATE OF JUDGMENT: January 20, 2012 APPEARANCES: Agent for the applicant: Silverio Ferrari Counsel for the respondent: Sandra K.S. Tsui COUNSEL OF RECORD: For the applicant: Name: Firm: For the respondent: Myles J. Kirvan Deputy Attorney General of Canada Ottawa , Ontario