Minister of National Revenue v. Tran, (2008) 324 F.T.R. 207 (FC)

• Judge: O'Keefe, J.
• Court: Federal Court (Canada)
• Case Date: September 24, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2008), 324 F.T.R. 207 (FC);2008 FC 297

MNR v. Tran (2008), 324 F.T.R. 207 (FC)

MLB headnote and full text

Temp. Cite: [2008] F.T.R. TBEd. MR.016

Her Majesty The Queen (applicant) v. Alexander Tran (also known as Quo Dong Tran, Dung Tran, Quoc Dong Tran and Quoc Tran) (respondent)

(T-756-07; 2008 FC 297)

Indexed As: Minister of National Revenue v. Tran

Federal Court

O'Keefe, J.

March 4, 2008.

Summary:

The Minister of National Revenue was granted an ex parte order against Tran, under s. 225.2(2) of the Income Tax Act (jeopardy order). Tran's counsel failed to meet the 30-day limitation period for filing an application for review. Tran requested an extension of time under s. 225.2(9)(b) of the Act, almost two months in excess of the expiry of the limitation period. Further, Tran argued that the circumstances warranted the exercise of the Federal Court's inherent power to extend the limitation period.

The Federal Court denied Tran's request and dismissed the application. The motion was not brought as soon as practicable under paragraph 225.2(9)(b) of the Act. Further, Tran failed to provide a justification for the delay. The court declined to exercise its inherent power to extend the limitation period, as the test for an extension of time in Hennelly (1999) (Fed. C.A.) had not been satisfied; nor was the reason for delay outside the control of counsel.

Barristers and Solicitors - Topic 659

Duty to court - Duty to make timely applications - [See Income Tax - Topic 9236 ].

Barristers and Solicitors - Topic 1541.1

Relationship with client - Duty to client - General - When limitation period missed - [See Income Tax - Topic 9236 ].

Courts - Topic 4072

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Limitation periods (incl. extension of) - [See Income Tax - Topic 9236 ].

Income Tax - Topic 9236

Enforcement - Collection - Jeopardy order (incl. direction to pay assessed tax forthwith) - Review (incl. limitation period) - The Minister of National Revenue was granted an ex parte (jeopardy) order against Tran on May 7, 2007, under s. 225.2(2) of the Income Tax Act - Tran faxed a copy of the order to the law firm Edelson & Associates on May 8, 2007 - Edelson immediately faxed the order to Dioguardi, Tran's civil tax counsel, followed by a voicemail message from Edelson to Dioguardi - However, the order was faxed to a secondary fax number at Dioguardi's office and did not come to his attention - On June 21, 2007, Edelson & Associates learned that no application had been brought by Dioguardi to remove the order - On June 29, 2007 Edelson & Associates commenced their research into the viability of bringing an application, and on August 3, 2007, filed the motion for an extension of time and application for review, almost two months in excess of the expiry of the limitation period - The Federal Court denied the motion and dismissed the application - The motion was not brought as soon as practicable under s. 225.2(9)(b) of the Act - Tran failed to provide a justification for the delay between June 21, 2007 and August 3, 2007 - The court declined to exercise its inherent power to extend the limitation period - The test for an extension of time in Hennelly (1999) (Fed. C.A.) had not been satisfied (no reasonable explanation for delay) - The reason for delay was not outside the control of counsel - It was reasonable to expect counsel to follow-up on the fax sent and, upon discovering that an application was not made in a timely fashion, to file the notice of motion as quickly as possible - The principle articulated in Chin applied (1993) (Fed. Ct.) (counsel and client are one, where counsel miss deadlines) - See paragraphs 20 to 29.

Limitation of Actions - Topic 9603

Enlargement of time period - General - Power to grant - [See Income Tax - Topic 9236 ].

Limitation of Actions - Topic 9613

Enlargement of time period - Application for - Time for application - [See Income Tax - Topic 9236 ].

Limitation of Actions - Topic 9618

Enlargement of time period - Application for - Explanation for delay - [See Income Tax - Topic 9236 ].

Cases Noticed:

Hoffmann-La Roche Ltd. et al. v. Canada (Minister of National Health and Welfare) et al. (1999), 167 F.T.R. 111 (T.D.), refd to. [para. 10].

Chiarelli v. Wiens (2000), 129 O.A.C. 129; 46 O.R.(3d) 780 (C.A.), refd to. [para. 10].

Smallwood v. Hill et al. (1997), 96 O.A.C. 278 (C.A.), refd to. [para. 10].

R. v. Blom (E.) (2002), 162 O.A.C. 238; 167 C.C.C.(3d) 332 (C.A.), refd to. [para. 10].

R. v. Beacon, [2005] O.J. No. 4664 (Sup. Ct.), refd to. [para. 10].

R. v. Milic (S.), [2001] O.T.C. 848 (Sup. Ct.), refd to. [para. 10].

R. v. Ubhi (J.S.) (1992), 17 B.C.A.C. 84; 29 W.A.C. 84 (C.A.), refd to. [para. 10].

Laframboise v. Canada, [1986] 3 F.C. 521; 5 F.T.R. 161 (T.D.), refd to. [para. 11].

Celanese Canada Inc. v. Murray Demolition Corp. et al. (2006), 352 N.R. 1; 215 O.A.C. 266 (S.C.C.), refd to. [para. 11].

Minister of National Revenue v. Ament (1996), 124 F.T.R. 135; 97 D.T.C. 5033 (T.D.), refd to. [para. 15].

Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 (F.C.A.), consd. [para. 15].

Minister of National Revenue v. Duncan (1991), 47 F.T.R. 220 (T.D.), refd to. [para. 16].

Minister of National Revenue v. Goldbeck (1990), 90 D.T.C. 6575 (F.C.A.), refd to. [para. 17].

Minister of National Revenue v. 514659 B.C. Ltd., [2003] F.T.R. Uned. 99; 2003 D.T.C. 5150 (T.D.), refd to. [para. 17].

Minister of National Revenue v. Goldland Jewelers Ltd., [2006] A.R. Uned. 203; 2006 ABQB 108, refd to. [para. 17].

1853-9049 Québec Inc. v. Minister of National Revenue (1986), 9 F.T.R. 63; 87 D.T.C. 5093 (T.D.), refd to. [para. 17].

Minister of National Revenue v. MacIver et al. (1999), 172 F.T.R. 273; 99 D.T.C. 5524 (T.D.), refd to. [para. 18].

Minister of National Revenue v. Rouleau (1995), 101 F.T.R. 57 (T.D.), refd to. [para. 18].

Services M.L. Marengère Inc. v. Minister of National Revenue (1999), 176 F.T.R. 1; 2000 D.T.C. 6032 (T.D.), refd to. [para. 19].

Delaunière et al., Re, [2007] F.T.R. Uned. 317; 2007 FC 636, refd to. [para. 19].

Minister of National Revenue v. Delaunière - see Delaunière et al., Re.

Ministre du revenu national v. Desgagné, [2001] F.T.R. Uned. 514 (T.D.), refd to. [para. 24].

Moreno v. Canada (Ministre de la Citoyenneté et de l'Immigration) (1996), 110 F.T.R. 57 (T.D.), refd to. [para. 24].

Chin v. Minister of Employment and Immigration (1993), 69 F.T.R. 77 (T.D.), appld. [para. 28].

Statutes Noticed:

Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1, sect. 225.2(8) [para. 1]; sect. 225.2(9) [para. 10].

Counsel:

Sophie Matt and Andrew Gibbs, for the applicant;

David M. Paciocco, for the respondent.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant;

Edelson & Associates, Ottawa, Ontario, for the respondent.

This motion for extension of time and application for review was heard at Ottawa, Ontario, on September 24, 2007, before O'Keefe, J., of the Federal Court, who rendered the following reasons for judgment on March 4, 2008.