Court File and Parties

COURT FILE NO.: 593/02 DATE: 2004-12-17

DIVISIONAL COURT SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Elias Helou o/a Your Choice Pizza & Wings Appellant (Respondent in Appeal)

A N D: The Minister of Finance Respondent (Appellant in Appeal)

BEFORE: Cunningham A.C.J., Lane and Ferrier JJ.

COUNSEL: Elias Helou, representing himself Waltar Kim, for the Respondent (Appellant in Appeal)

HEARD: December 8, 2004

E N D O R S E M E N T

[1] The Minister of Finance appeals from the order of Brennan J. dated September 16, 2002 wherein he granted the respondent an extension of time for filing his notice of appeal and dismissed the Minister’s cross-motion to have the notice of appeal struck out.

[2] Leave to appeal was granted by McNeely J. on October 25, 2002.

[3] The principal issue to be determined here is whether the court has jurisdiction to extend the time for instituting a tax appeal in the face of an express limitation period set out in s. 25 of the Retail Sales Tax Act.

[4] The respondent was audited for the period ending October 31, 1999 and the Minister assessed him for tax collected and not remitted. A notice of assessment was issued December 23, 1999.

[5] The respondent, by notice of objection dated June 12, 2000, objected to the assessment. This objection contained no reasons and by letter dated July 13, 2000 the Minister informed the respondent he had 60 days to provide reasons for the objection, failing which the Minister would confirm the assessment. No additional information was submitted by the respondent.

[6] By letter dated September 20, 2000, the Minister confirmed the assessment and in that letter advised the respondent he had 90 days in which to dispute the matter further. Apparently several calls were made to the Minister by the respondent, but no request for an extension of the time for filing the notice of appeal was requested. On January 26, 2001, the respondent served the Minister with his notice of appeal, 37 days after the end of the 90-day limitation period (December 19, 2000). The Minister advised the respondent by letter dated April 4, 2001 that his appeal was invalid as it had been filed outside the limitation period prescribed in the statute. On the strength of that, the respondent filed a notice of motion for an extension of the time for filing his notice of appeal.

[7] Brennan J., in his reasons for granting the extension, applied a “purposive approach” holding that s. 25 is a deeming provision by virtue of s. 29 and has the effect of bringing a dispute between a taxpayer and the Minister into the court so that it can be dealt with impartially and pursuant to the inherent powers of the court. Alternatively, Brennan J. held, based on the facts of the case, that the Minister was estopped from relying on the 90-day limitation period set out in s. 25 of the Act.

[8] The principal issue before us is whether Brennan J. erred in holding that the court had jurisdiction to extend the time for filing the notice of appeal.

[9] This being an order from a judge of this court, the standard of review is correctness, which is to say whether the decision of the judge was “clearly wrong”.

[10] In our view, Brennan J. erred in holding that “the real issue for determination is whether the taxpayer would be obliged to pay the amount assessed without consideration by the court or the Ministry of the grounds stated in the notice of appeal.” The real issue is whether the court had jurisdiction to extend the limitation period.

[11] The provisions of the Retail Sales Tax Act are clear and unambiguous. An appeal is not deemed to be an action until the requirements set out in ss. 26 and 27 are met. They were not met in the present case. The only deeming provision is s. 27 of the Act. Section 27 states as follows:

27.(1) Upon the filing of the material referred to in s. 26 with the Superior Court of Justice, the matter shall be deemed to be an action in the court.

Moreover, in our view, the learned motions judge erred in concluding that the Minister had to “meaningfully” re-consider the respondent’s appeal. The only obligation upon the Minister is to re-consider the matter. There is no requirement that it be “meaningfully” re-considered and the Minister is not required to provide an explanation as to the process under which the re-consideration occurred.

[12] Brennan J. also relied upon Molson Ontario Breweries v. Ontario (Minister of Finance), [1985] O.J. No. 295 in finding that the Minister was estopped from relying on the limitation period. In our view, Molson Breweries (supra) is distinguishable on its facts as it dealt with an actual misrepresentation by Ministry officials regarding the date upon which a notice of appeal might be filed and served. In the present case, the Minister at no time misrepresented to the respondent that he did not need to file and serve within the 90-day limitation period.

[13] For these reasons, the appeal is allowed and the order of Brennan J. dated September 16, 2002 is set aside. In its place, the motion by the respondent herein for an extension of time for filing and serving a notice of appeal dated December 14, 2000 is dismissed and the Minister’s cross-motion to strike out the notice of appeal dated December 14, 2000 is granted.

Cunningham A.C.J.