https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/348970/index.do
Akanda Innovation Inc. v. The Queen (November 1, 2018 – 2018 FCA 200, Webb (Author), Rennie, Laskin JJ.A.).
Précis: The amounts at issue in this appeal were large:
[3] Akanda was reassessed to deny scientific research and experimental development expenditures in excess of $6 million and related investment tax credits in excess of $1.5 million collectively for its 2007, 2008, 2009 and 2010 taxation years.
After a rather convoluted history the appeals were dismissed by the Tax Court for failure to appear at a status hearing. The taxpayer retained new counsel who moved for an extension of time to bring an application to set aside the default judgments as well as moving to set aside the default judgements. The Tax Court denied the motion for an extension of time on the dual bases that the respondent would be prejudiced and that there was no reasonable explanation of the delay in bringing the application. The Court of Appeal found that there was no evidence of prejudice to the respondent and that the interests of justice favoured granting the extension of time. The matter was referred back to the Tax Court for a determination whether the default judgments should be set aside. Upon agreement of the parties Akanda was ordered to pay $5,000 in costs to the Crown.
Decision: The Court of Appeal’s paramount concern was the interests of justice, which it found favoured the taxpayer:
C. Prejudice to the Crown
[36] In the Crown’s written representations to the Tax Court in relation to Akanda’s motion, the Crown did not identify any particular prejudice that would be suffered as a result of the delay from April 9, 2017 to July 25, 2017. The three brief paragraphs in the Crown’s submission that address this issue only provide general statements of prejudice that may arise as a result of delays in pursuing an appeal and Akanda’s failure, in this case, to produce its list of documents (which, as a result of the Order issued with the consent of the Crown, was not due until after the date of the default Judgments). The Tax Court also did not identify any particular prejudice that would be suffered by the Crown as a result of the delay from April 9, 2017 to July 25, 2017.
[37] Therefore, there is no basis to find that any prejudice would be suffered by the Crown arising from the delay from April 9, 2017 to July 25, 2017.
D. Reasonable Explanation for the Delay
[38] Akanda does not provide a reasonable explanation for this delay from April 9, 2017 to July 25, 2017.
E. Interests of Justice
[39] It is not necessary that Akanda satisfy all four factors to be successful in its application for an extension of time. Since the findings with respect to three of the four factors favour Akanda and since the amounts involved are significant, the interests of justice support a finding that the application for an extension of time should be granted in this case.
V. Conclusion
[40] As a result, in my view, the Tax Court erred in dismissing the application for an extension of time and this appeal should be allowed. Since the Order only addressed the application for an extension of time, the second part of Akanda’s motion, in which it requested an order setting aside the default Judgments, remains outstanding and will need to be addressed by the Tax Court.
In the result, the matter was referred back to the Tax Court for a determination whether the default judgments should be set aside. Upon agreement of the parties Akanda was ordered to pay $5,000 in costs to the Crown.