SATPAL KAUR Applicant v. HER MAJESTY THE QUEEN, 2011 FCA 292

Federal Court of Appeal CANADA Cour d'appel fédérale Federal Court of Appeal CANADA Cour d'appel fédérale Date: 20111020 Docket: 11-A-23 Citation: 2011 FCA 292 Present: SHARLOW J.A. BETWEEN: SATPAL KAUR Applicant and HER MAJESTY THE QUEEN Respondent Dealt with in writing without appearance of parties. Order delivered at Otttawa , Ontario, on October 20, 2011. REASONS FOR ORDER BY: SHARLOW J.A. Date: 20111020 Docket: 11-A-23 Citation: 2011 FCA 292 Present: SHARLOW J.A. BETWEEN: SATPAL KAUR Applicant and HER MAJESTY THE QUEEN Respondent

REASONS FOR ORDER SHARLOW J.A. [1] Ms. Satpal Kaur has filed a notice of motion to seek an extension of time to commence an appeal of an order of the Tax Courtof Canada dated September 2, 2011. The order sought to be appealed grants the motion of the Crown that Ms. Kaur’s appeal under theExcise Tax Act, R.S.C. 1985, c. E-15, of an assessment of goods and services tax (GST) be heard under the “general procedure” rulesrather than the “informal procedure” as Ms. Kaur had elected in her notice of appeal.

The change of procedure means, among otherthings, that the parties will be obliged to submit to pre-trial discoveries, and may be subject to an award of costs in the Tax Court.

TheCrown opposes the motion to extend the time. [2] Generally, the factors to be considered in determining whether to extend the time for appealing an order are (1) whetherthere is an arguable case on appeal, (2) whether there are special circumstances that justify the delay in commencing the appeal, (3)whether there was a continuing intention to appeal, (4) whether the delay has been excessive, and (5) whether the respondent will beprejudiced if the extension of time is granted: Karon Resources Inc. v. Canada (1993), (FC), 71 F.T.R. 232, [1994] 1C.T.C. 307 (F.C.T.D.), cited in Pharmascience Inc. v.

Minister of Health, 2003 FCA 333. The weight to be given to these factors willvary with the circumstances. [3] The order sought to be appealed is interlocutory. By the combined operation of paragraphs 27(1.1)(

c) and 27(2)(

a) of theFederal Courts Act, R.S.C. 1985, c. F-7, the notice of appeal should have been filed within 10 days after the pronouncement of thejudgment. An order of the Tax Court is “pronounced” on the date on which the signed judgment is recorded by the Tax Court registry. [4] In this case, the order was issued without an oral hearing, on the basis of documents filed by the parties. It was signed onFriday, September 2, 2011. The record does not disclose when that order was deposited in the registry and entered. In the absence ofevidence, I will assume (consistently with Canada Trustco Mortgage Company v.

Her Majesty the Queen, 2008 FCA 382, at paragraph8), that the order was entered on the day it was signed. On that basis, the notice of appeal should have been filed no later than Monday,September 12, 2011. [5] The Crown has suggested that the certification stamp on the copy of the order sent to Ms. Kaur indicates that the order wasdeposited with the registry and entered on September 6, 2011, and that the notice of appeal should have been filed by September 16,2011. However, that is not what the stamp itself says.

It says only that the certification of the order occurred on September 6, 2011. [6] The Crown does not argue that there was no continuing intention to appeal, that the delay has been excessive, or that theCrown will be prejudiced if the extension is granted. However, the Crown submits that there is no justification for the delay, and that theappeal has no merit. [7] According to the affidavit filed by Ms. Kaur in support of her motion, the registry mailed the order to her on September 6,2011.

It reached her mailbox on September 7, 2011, but she did not actually receive the order until September 13, 2011 because it wasonly then that Ms. Kaur’s staff picked up the envelope and signed for it. By that time, the appeal period had already expired and therewas no time to prepare a notice of appeal. Ms. Kaur argues that these circumstances provide a reasonable justification for the delay.However, I am inclined to accept the submission of the Crown that Ms. Kaur has not explained the one week delay in picking up hermail. [8] As to the merits of the appeal, Ms.

Kaur has submitted that it has merit, but the material she has filed does not explain whyshe takes that position. The proposed grounds of appeal are not set out in her motion record. The Crown argues that the appeal has nomerit, because the Tax Court had no discretion to refuse its motion to have Ms. Kaur’s appeal be governed by the general procedurerules. This submission assumes that Ms. Kaur intends to appeal the Tax Court order on the basis of a misinterpretation of subsection18.3002(1) or a wrongful exercise of discretion. As Ms.

Kaur has not stated the grounds upon which she wishes to appeal, and thematerial before me contains nothing that suggests any other ground of appeal, I make the same assumption. [9] The order sought to be appealed granted the Crown’s motion under subsection 18.3002(1) of the Tax Court of Canada Act,R.S.C. 1985, c. T-2, requiring Ms. Kaur’s appeal to be governed by the general procedure rules, rather than the informal procedure rulesas Ms. Kaur had elected under

section 18.3001. Those provisions read as follows:

18.3001 Subject to

section 18.3002, this

section and sections 18.3003 to 18.301 apply, with any modifications that the circumstances require, to an appeal under (

a) the Excise Act, 2001 if (

i) a person has so elected in the notice of appeal for an appeal under that Act or at such later time as may be provided in the rules of Court, and (ii) the amount in dispute does not exceed $25,000; and (

b) Part V.1 of the Customs Act or

Part IX of the Excise Tax Act if a person has so elected in the notice of appeal for an appeal under that Act or at such later time as may be provided in the rules of Court. 18.3001.

Sous réserve de l'article 18.3002, le présent

article et les articles 18.3003 à 18.301 s'appliquent, avec les adaptations nécessaires, aux appels interjetés en vertu :

a) de la Loi de 2001 sur l'accise si, à la fois : (

i) une personne en fait la demande dans son avis d'appel ou à toute date ultérieure prévue par les règles de la Cour, (ii) le montant en litige n'excède pas 25 000 $ ;

b) de la

partie V.1 de la Loi sur les douanes ou de la

partie IX de la

Loi sur la taxe d'accise , si une personne en fait la demande dans son avis d'appel ou à toute date ultérieure prévue par les règles de la Cour. 18.3002

(1) Where the Attorney General of Canada so requests, the Court shall order that sections 17.1, 17.2 and 17.4 to 17.8 apply in respect of an appeal in respect of which sections 18.3003 and 18.3007 to 18.302 would otherwise apply. 18.3002

(1) Sur demande du procureur général du Canada, la Cour doit ordonner l’application des articles 17.1, 17.2 et 17.4 à 17.8 à l’appel auquel les articles 18.3003 et 18.3007 à 18.302 s’appliqueraient par ailleurs.

(2) A request under subsection (1) shall not be made after sixty days after the day the Registry of the Court transmits to the Minister of National Revenue the notice of appeal unless (

a) the Court is satisfied that the Attorney General of Canada became aware of information that justifies the making of the request after the sixty days had elapsed or that the request is otherwise reasonable in the circumstances; or (

b) the person who has brought the appeal consents to the making of the request after the sixty days have elapsed.

(2) La demande doit être présentée dans les soixante jours suivant la transmission de l’avis d’appel par le greffe de la Cour au ministre du Revenu national ou après l’expiration de ce délai dans les cas suivants :

a) la Cour est convaincue que le procureur général du Canada a pris connaissance de renseignements tels qu’il est justifié de présenter la demande après l’expiration de ce délai, ou que la demande est par ailleurs raisonnable dans les circonstances;

b) la personne qui interjette appel y consent. (In

section 18.3001, an appeal to which “ this

section and sections 18.3003 to 18.301 apply” means an appeal governed by the Tax Court’s informal procedure. In subsection 18.3002(1), an appeal to which “sections 17.1, 17.2 and 17.4 to 17.8 apply” means an appeal governed by the Tax Court’s general procedure.) [ 10 ] As I read subsection 18.3002(1), the Tax Court had no discretion to refuse to grant the Crown’s motion because it was made within 6o days after the day the registry transmitted the notice of appeal to the Minister. According to the affidavit filed by the Crown to oppose Ms. Kaur’s motion for an extension of time, the registry transmitted Ms.

Kaur’s notice of appeal to the Minister on May 24, 2011, and the Crown filed its subsection 18.3002(1) motion on July 14, 2011. [ 11 ] This

interpretation of subsection 18.3002(1) is supported by the word “shall” in that provision, and also by subsection 18.3002(2) which requires the Crown to justify a subsection 18.3002(1) motion only if it is made outside the stated 60 day time limit.

The absence of any requirement for a justification if the motion is made within the 60 day time limit indicates that the Tax Court was not intended to have the discretion to dismiss a motion made within that time. I note that this

interpretation of subsection 18.3002(1) has been accepted by the Tax Court of Canada: see Oakville Motor Sales & Leasing Inc. v. Canada , [1996] G.S.T.C. 80 (T.C.C.); Moriyama v. Canada , 2001 D.T.C. 774 (T.C.C.) ; and Automoney Motor Corp. v. Canada , 2011 TCC 4 . I was able to find no cases adopting any other

interpretation. [ 12 ] I agree with the Crown that Ms. Kaur’s appeal of the interlocutory order cannot succeed, and that Ms. Kaur has not justified the delay. In the circumstances of this case, those are sufficient grounds for dismissing Ms. Kaur’s motion for an extension of time to appeal. Accordingly, the motion will be dismissed with costs. “K. Sharlow” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: 11-A-23 STYLE OF CAUSE: MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR ORDER BY: SHARLOW J.A. DATED: OCTOBER 20, 2011 WRITTEN REPRESENTATIONS BY : Satpal Kaur FOR THE APPLICANT (SELF REPRESENTED)

SELENA SIT FOR THE RESPONDENT SOLICITORS OF RECORD : N/A FOR THE APPLICANT (SELF REPRESENTED) MYLES J. KIRVAN Deputy Attorney General of Canada FOR THE RESPONDENT