Doray v. R. – FCA: Court denies self-represented taxpayer’s application to late file appeal – unexplained 57 day delay

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Doray v. The Queen
(April 1, 2014 – 2014 FCA 87) was an appeal to a single judge of the Federal Court of Appeal (Stratas JA) for an extension of the time to file a notice of appeal from a decision of the Tax Court. The Tax Court decision was rendered on October 3, 2013 but is not available from the Tax Court web site or CANLII. Mr. Doray, who was self-represented, appears to have flailed about trying to determine how to appeal. On January 17, 2014 the Federal Court of Appeal registry “wrote the applicant and outlined the procedure for both an appeal and for a motion seeking an extension of time.” However Mr. Doray appears to have delayed some 57 days after the date of that letter before filing his application.

The court was unhappy with this delay, the content of his proposed notice of appeal and the style of cause:

[9] To this point, on a generous interpretation of the events, the applicant’s delay might be explained by lack of knowledge and confusion. It is a generous interpretation because as early as mid-November the applicant was on notice that there were irregularities that needed to be addressed, yet the applicant did very little, if anything, to address them.

[10] But even on that generous interpretation of events, there is an unexplained 57 day delay leading up to this motion for an extension of time. As of January 17, 2014, the applicant had all the information necessary to present a proper notice of appeal to this Court along with a motion for an extension of time. Yet, 57 days – almost two times the normal 30 day time period for launching an appeal – went by before the applicant moved for an extension of time. This delay is unexplained.

[11] In addition, the applicant has not provided the notice of appeal that will be filed if this Court grants the extension of time. The motion materials contain a Tax Court document entitled “notice of appeal,” but that document does not comply with Rule 337.1 of the Federal Courts Rules, is not in Form 337.1, nor does it set out any of the limited grounds of appeal to this Court permitted by subsection 27(1.3) of the Federal Courts Act, R.S.C. 1985, c. F-7. Quite simply, it is not clear that the document entitled “notice of appeal” raises matters within this Court’s purview. Accordingly, I am not satisfied from the material before me that there is an arguable case on appeal.

[12] The respondent, among other things, notes that the style of cause in this motion is incorrect, naming as it does the counsel for the respondent. I agree. The proper respondent is Her Majesty the Queen. Therefore, the style of cause in this motion shall be amended to reflect this.

[13]           For the foregoing reasons, I shall dismiss the motion. Appropriately, the respondent does not seek costs and so none shall be awarded.

Comment: This seems a harsh result for Mr. Doray; historically the Federal Court of Appeal has been somewhat more accommodating in the case of self-represented litigants who appear to have gotten lost in the system.