A-637-81
Tic Toc Tours Ltd. (Applicant)
v.
Minister of National Revenue (Respondent)
Court of Appeal, Pratte, Ryan JJ. and Lalonde
D.J.—Montreal, May 18; Ottawa, May 26, 1982.
Judicial review — Applications to review — Income tax —
Application to review and set aside decision of Tax Review
Board dismissing application under s. 167 of the Act for
extension of time for filing notices of objection against reas
sessments for income tax — Board refused extension on
grounds that, because evidence presented by applicant did not
indicate that it had been impossible for it to serve notices
within time limit prescribed, s. 167(2) precluded Board from
exercising discretion under s. 167(1) — S. 167(1) sets out
circumstances in which Board authorized to exercise discretion
to extend time for serving notice of objection — S. 167(2)
requires that applicant set forth reasons why notice not served
within time prescribed — Application granted — Income Tax
Act, S.C. 1970-71-72, c. 63, s. 167 — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
G. Du Pont for applicant.
J. P. Malette for respondent.
SOLICITORS:
Verchère, Noël & Eddy, Montreal, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered in English by
PRATTE J.: This section 28 application is direct
ed against a decision of the Tax Review Board
dismissing an application pursuant to section 167
of the Income Tax Act, R.S.C. 1952, c. 148, as
am. by S.C. 1970-71-72, c. 63, s. 1, for an order
extending the time for filing notices of objection
against reassessments for income tax.
The first two subsections of section 167 read as
follows:
167. (1) Where no objection to an assessment under section
165 or appeal to the Tax Review Board under section 169 has
been made or instituted within the time limited by section 165
or 169, as the case may be, for doing so, an application may be
made to the Tax Review Board for an order extending the time
within which a notice of objection may be served or an appeal
instituted and the Board may, if in its opinion the circum
stances of the case are such that it would be just and equitable
to do so, make an order extending the time for objecting or
appealing and may impose such terms as it deems just.
(2) The application referred to in subsection (1) shall set
forth the reasons why it was not possible to serve the notice of
objection or institute the appeal to the Board within the time
otherwise limited by this Act for so doing.
As I read the decision under attack, the member
of the Board refused to grant the extension of time
sought by the applicant because, as the evidence
did not disclose that it had been impossible for the
applicant to serve the notice of objection within
the time limit, he considered that he was precluded
by subsection 167(2) from exercising the discre
tion conferred on him by subsection 167(1).
This decision is, in my view, founded on an error
of law and must, for that reason, be set aside. The
circumstances in which the Board is authorized,
subject to the requirements of subsection 167(5),
to exercise its discretion to extend the time within
which a notice of objection may be served are
described in subsection 167(1) which does not
require that it should have been impossible for the
taxpayer to serve the notice within the time limit.
Subsection 167(2) is a procedural provision which
merely requires, in my view, that the applicant set
forth, in his application for an extension of time,
the reasons why the notice was not served within
the time prescribed.
I would, for this reason, grant the application,
set aside the decision under attack and refer the
matter back to the Board for decision after a new
hearing before another member of the Board on
the basis that subsection 167(2) must be interpret
ed as merely requiring the applicant to state in his
application for an extension of time the reasons
why the notice of objection was not served within
the time prescribed by the Act.
RYAN J. concurred.
LALANDE D.J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.