Date: 20011114
Docket No.: 01-T-53
Neutral Citation: 2001 FCT 1251
Ottawa, Ontario, this 14th day of November, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
STEVEN K. WHITMAN
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
Docket No.: 00-T-54
AND BETWEEN:
MARGO J. WHITMAN
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
1. This is a motion for an extension of time for the filing of a notice of application for judicial review of the decision of the Canada Customs and Revenue Agency (the "CCRA") dated July 23, 2001.
Facts
2. On March 5, 2001, the applicant made a request to CCRA for interest relief in relation to a personal income tax account for the 1991, 1992 and 1993 taxation years under the provisions of the fairness legislation.
3. The request was reviewed by an Assistant Director, Revenue Collections, Halifax Tax Services Office, and in a letter dated May 28, 2001, the Assistant Director informed the applicant that his request for interest relief had been denied. In that same letter, the Assistant Director also advised the applicant that a request could be made for an independent review of that decision.
4. On or about June 28, 2001, the applicant requested an independent review of the May 28, 2001 decision. An independent review of the May 28, 2001 decision was conducted and in a letter dated July 23, 2001, the Director, Halifax Tax Services Office, informed the applicant that the May 28, 2001 decision was correct. The applicant was also informed in that same letter that if he felt that proper discretion was not exercised in reviewing the request for relief, the applicant could apply to the Federal Court of Canada for judicial review within thirty (30) days of the date of the letter.
5. The applicant admitted to receiving the letter but failed to comply with the thirty (30) day deadline for filing a notice of application for judicial review.
6. The applicant brings this motion for an extension of time to file a notice of application for judicial review.
7. From the time of the making of the original request for interest relief, the applicant was at all times self represented.
Issue
8. Should this Court grant an extension of time to file a notice of application for judicial review?
Analysis
9. Rule 8 of the Federal Court Rules, 1998, SOR/98-106, provides that on motion the Court may extend or abridge a period provided by the Rules. McDonald J.A., in Canada v. Hennelly (1999), online: QL, F.C.J. No. 846 at paragraph 3, enunciated the criteria to be met by a party seeking an extension of time.
1. a continuing intention to pursue his or her application;
2. that the application has some merit;
3. that no prejudice to the respondent arises from the delay; and
4. that a reasonable explanation for the delay exists.
10. Further, there are additional factors which may be considered and which were canvassed by the Federal Court of Appeal in the Grewal decision, (1985), 2 C.F. 263 (F.C.A.). In the words of Chief Justice Thurlow (at page 272 and at 277-78):
... which, it seems to me, must be borne in mind in dealing with any application of this kind, is whether, in the circumstances presented, to do justice between the parties calls for the grant of the extension.
...
... in the end, whether or not the explanation justifies the necessary extension must depend on the facts of the particular case and it would, in my opinion, be wrong to attempt to lay down rules which would fetter a discretionary power which Parliament has not...fettered.
In separate reasons, Justice Marceau emphasized (at page 282):
...it seems to me that, in order to properly evaluate the situation and draw a valid conclusion, a balancing of the various factors involved is essential. For example, a compelling explanation for the delay may lead to a positive response even if the case against the judgment appears weak, and equally a strong case may counterbalance a less satisfactory justification for the delay.
11. In the case before me, I accept that the applicant did express a continuing intention to pursue her application and there is no evidence before me to suggest otherwise. The applicant's evidence is that she feels that her request was denied based on a perception that her financial situation had improved. The applicant also states that she is penalized because through her, "hard work and maintaining a course of integrity to do the ‘right thing' and piece back together their life; while there appears to be more leniency granted to those who may have given up or chosen to stay indefinitely in their circumstances."
12. The evidence does point to repeated attempts by the applicant to obtain information from officials at the CCRA. At the hearing of this matter, the applicant advised the Court that she did indeed visit the Federal Court offices on October 1, 2001 and had spoken with officials of the Court a week earlier.
13. In this case, I cannot conclude that the case against the decision is a strong one. However, I am convinced that in the circumstances of this case, given the relatively short delay, 11 days, that to do justice between the parties calls for the grant of the extension of time.
14. For the above reasons, I will exercise my discretion and grant the motion.
ORDER
THIS COURT ORDERS that:
1. The applicant will have ten (10) days from the date of this order to file and serve his (her) application for judicial review of the decisions of the Canada Customs and Revenue Agency dated July 23, 2001.
"Edmond P. Blanchard"
Judge