O’Byrne v. R. - FCA: Tax Court correct to deny extension of time to file notices of objection

O’Byrne v. R. - FCA:  Tax Court correct to deny extension of time to file notices of objection


O’Byrne v. Canada (November 2, 2015 – 2015 FCA 239, Ryer (author), Boivin, Rennie JJ.A.).

Précis:   This was an appeal from a decision of the Tax Court in which Justice Boyle had denied the taxpayer’s application for an extension of time to file notices of objection holding that the application was more than 10 years late.

The Federal Court of Appeal concurred with Justice Boyle and dismissed the appeal from the bench, but without costs.  It also declined to exercise its discretion to permit  the taxpayer to give a notice of constitutional question for the first time in the Court of Appeal.

Decision:    The Federal Court of Appeal recognized that the taxpayer’s concern was not with the validity of the assessments but rather the failure of her estranged husband to pay the tax at issue and the computation of arrears:

[10]           The Judge determined that in fact the Taxpayer did not wish to dispute any of the Assessments that were made against her. The Judge described what he understood to be the Taxpayer’s real complaint in relation to the computation of the amount of the Tax Arrears, explained why the Tax Court of Canada had no jurisdiction to redress that complaint and urged counsel for the Minister to provide whatever assistance he could to point the Taxpayer in the direction of a possible avenue of redress for her complaint.

[13]           We commend the Judge for his efforts in going beyond what was necessary to explain the reasons for his denial of the application, making clear the limitations of the Tax Court of Canada in relation to the Taxpayer’s real complaint and describing other possible venues where she might seek redress for that complaint.

While the Court recognized that it had jurisdiction to permit the taxpayer to give notice of a constitutional question for the first time in the Court of Appeal, it declined to exercise that jurisdiction:

[14]           The Appellant has served and filed a Notice of Constitutional Question, raising for the first time a question of the constitutional validity, applicability and effect of subsection 152(9) and sections 166.1, 166.2, 222, 165 and 169 of the Act, on the basis that they contravene sections 7 and 8 of the Canadian Charter of Rights and Freedoms.

[15]           In Guindon v. Canada, 2015 SCC 41, 387 D.L.R. (4th) 228, the Supreme Court of Canada confirmed that this Court has the discretion to decide a newly raised constitutional question, in respect of which a Notice of Constitutional Question has been served and filed, but that such discretion should only be exercised in rare cases. In our view, this is not one of those rare cases. Having regard to the evidentiary record before the Court and the assertions of the Appellant, we are not persuaded that addressing this newly presented constitutional challenge is required by the public interest or important to the administration of the Act. Accordingly, we decline to exercise our discretion to consider the Appellant’s constitutional question.

The appeal was dismissed from the bench, but without costs.