|
Federal Court - Time and Extensions (2). Whitelaw v. Canada (Attorney General)
In Whitelaw v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal considered the test for extending time under the Federal Rules:[1] The appellant seeks an order extending the time to serve and file a motion to determine the contents of the Appeal Book under Rule 343(3) of the Federal Courts Rules, S.O.R./98-106 (the Rules). ....
....
[6] In order for her motion to succeed, the appellant needed to show: (i) a continuing intention to pursue the underlying proceeding (here, a motion to determine – or vary – the contents of the Appeal Book); (ii) that this underlying proceeding has some merit; (iii) that no prejudice to the respondent arises from the delay; and (iv) that a reasonable explanation for the delay exists (see Canada (Attorney General) v. Hennelly, 1999 CanLII 8190 (FCA) at para. 3). As stated in Canada (Attorney General) v. Larkman, 2012 FCA 204 (Larkman), the overriding consideration in such matters "“is that the interests of justice be served”" (Larkman at para. 62). . Bank of America v. Canada (Attorney General)
In Bank of America v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from a JR of a dismissal of an late-filed application [under Excise Act s.141.02] to become a "qualifying institution", which would allow the applicant to "claim input tax credits above a prescribed rate".
Here the court considers a time extension to commence an application, which turns largely of the applicant's "degree of care" in trying to meet the timeline:[4] The Minister refused to exercise her discretion to accept the late filing of applications by the Bank of America, National Association, primarily based on the Bank’s failure to exercise due care with respect to its filing obligations. In a decision reported as 2023 FC 1496, the Federal Court dismissed the Bank’s application for judicial review of the Minister’s decision, finding that her decision was both reasonable and fair.
....
[10] The Bank contends that the decision to reject its applications for late filing was unreasonable as the Minister applied the wrong test in rejecting its applications, given the scheme and underlying purpose of section 141.02 of the Act. Rather than focussing on the Bank’s diligence in filing its section 141.02 applications, the Bank says that the Minister should have applied the four-part test applicable to extensions of time under section 18.1(2) of the Federal Courts Act, R.S.C. 1985, c-F-7. That is, the Minister should have considered whether the Bank had a continuing intention to pursue its application, whether the application had some merit, whether there was any prejudice to the respondent as a result of the Bank’s delay and whether the Bank had a reasonable explanation for its delay: Canada v. Hennelly, 1999 CanLII 8190 (FCA), [1999] F.C.J. No. 846, 244 N.R. 399.
[11] There are two problems with the Bank’s argument. The first is that this Court has already determined that it is reasonable for the Minister to have regard to the diligence of a taxpayer in circumstances such as this: Denso Manufacturing Canada, Inc. v. Canada (Minister of National Revenue), 2021 FCA 236. The second is that even if the Bank were correct, and the Minister applied the wrong test in denying its applications for late filing, it was still required to provide a reasonable explanation for its delay under the Hennelly test, which it failed to do.
[12] The Minister found that the Bank had failed to exercise the requisite degree of care in this matter. This was a factually suffused finding that provided a reasonable basis for the Minister’s decision to deny the Bank’s applications for late filing, and the Bank has not shown any reversible error with respect to this factually suffused finding. Consequently, the appeal will be dismissed with costs.
|
