SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-443444
DATE: 20140213

RE: Dominic Leo and 1641888 Ontario Ltd. o/a as Double Double Pizza, Appellant

– AND –

The Minister of Revenue, Respondent

BEFORE: Justice E.M. Morgan

COUNSEL: Dominic Leo, in person

Doninique Ferland, for the Respondent

HEARD: February 13, 2014

ENDORSEMENT

[1] The Appellants have appealed an assessment under the Retail Sales Tax Act, RSO 1990, c. R.31 (the “Act”).

[2] The Respondent moves to dismiss the appeal as being out of time.

[3] Section 25(1) of the Act provides that “no appeal under this section shall be instituted after the expiration of ninety days from the day notice has been mailed to such person under subsection 24(4).” That notice is dated October 7, 2011, which under subsection 24(3) of the Act is deemed to be the date on which the 90 day clock begins to run.

[4] The Respondent contends that the appeal was filed by the Appellant on January 6, 2012, or 1 day after the expiry of the 90 day limitation period. The Respondent also contends that the Minister was not served with the appeal until January 31, 2012, which would be 26 days after expiry of the 90 day limitation period.

[5] Unfortunately, the Motion Record filed by the Respondent contains some crucial gaps. There is no evidence at all of the date that the appeal was filed. Further, while a law clerk for the Respondent deposes that the Respondent was served on January 31, 2012, the exhibit that she references as proof of that date of service was left out of the record.

[6] The Appellant has not filed any materials in response to the motion. I have advised him that while it is the right of any litigant to represent himself, he would be well served to seek legal advice here.

[7] The portions of the Act dealing with limitation periods are drafted in a way that appears strict to the point of being draconian. However, the Court of Appeal has stated quite clearly in Cheong v The Minister of Finance, [2004] OJ No. 378, at para 37 that, “[t]he court does not have the power to relieve against the limitation period in s. 25(1) of the RSTA.”

[8] That said, the Respondent is required to prove, by evidence contained in the Motion Record, that the statutory date for instituting the appeal passed. I understand that there may have been a clerical mishap in putting together the motion record, but in my view if the Respondent is going to hold the taxpayer to a strict deadline it is incumbent on it to ensure that its own evidentiary burden is strictly met. The Motion Record before me simply does not contain that proof.

[9] The motion is therefore dismissed.

[10] The Appellant does not seek costs of today’s motion.

Morgan J.

Date: February 13, 2014