Date: 19980529

Docket: A-682-97

CORAM:      MARCEAU J.A.

         DESJARDINS J.A.

         LÉTOURNEAU J.A.

BETWEEN:

     CLAUDE LAMARRE,

     ÉRIC ALBERT,

     YANNICK BEAULIEU,

     MAURICE ALBERT,

     MARCO SHEINK

     Applicants

     - and -

     MINISTER OF NATIONAL REVENUE

     Respondent

Hearing held at Québec, Quebec on Friday, May 29, 1998.

Judgment delivered from the bench on Friday, May 29, 1998.

REASONS FOR JUDGMENT OF THE COURT

DELIVERED BY:      MARCEAU J.A.

     Date: 19980529

     Docket: A-682-97

CORAM:      MARCEAU J.A.

         DESJARDINS J.A.

         LÉTOURNEAU J.A.

BETWEEN:

     CLAUDE LAMARRE,

     ÉRIC ALBERT,

     YANNICK BEAULIEU,

     MAURICE ALBERT,

     MARCO SHEINK

     Applicants

     - and -

     MINISTER OF NATIONAL REVENUE

     Respondent

     REASONS FOR JUDGMENT OF THE COURT

     (Delivered from the bench at Québec, Quebec

     on Friday, May 29, 1998)

MARCEAU J.A.

[1]      We are all of the view that the Deputy Judge of the Tax Court of Canada was right to dismiss the applicants" applications for leave to appeal from the Minister of National Revenue"s decision that their employment was not insurable.

[2]      There is no question, ever since this Court"s decision in Vaillancourt ,¹ that the 90-day time limit set by subsection 70(1) of the Unemployment Insurance Act² for an appeal from a decision of the Minister is a strict time limit which the Tax Court of Canada is unable to extend.

[3]      Nor is there any question, under rule 5 of the Tax Court of Canada Rules of Procedure respecting the Unemployment Insurance Act,³ that the starting point for the 90-day time limit is the date of the decision in cases such as this, where the decision was communicated by mail to the person affected and there is no evidence to suggest that it was not mailed until later. The applicants tried to argue that this provision of the Tax Court of Canada rules of procedure"which is connected with the unambiguous authority which Parliament granted the Tax Court in 1993 in subsection 20(1) and paragraph 20(1.1)(h.1 ) of its enabling Act⁴"was ultra vires because it was inconsistent with the Act as it stood in 1990, when the provision was made, assuming the word "communicated" in section 70, standing alone at the time, was intended to mean [TRANSLATION] "made known". However, in order for that position to be tenable, it would be necessary not only to disregard the law as it stood when the challenge was brought in determining whether a provision was ultra vires , but also to overlook paragraph 44(g) of the Interpretation Act,⁵ which deems the provision to have been made when the new enabling Act was substituted for the former one. Lastly, to take the position that the making of such a provision would infringe some fundamental right protected by the Canadian Charter of Rights and Freedoms, one would have to suppose that a right of appeal was a natural and absolute right, not just a right which must be granted expressly and, therefore, may be granted conditionally.

[4]      One final point to add is that we do not accept counsel"s able argument in the alternative that if rule 5 were to be given effect, so too must rule 26.1(1) of the Tax Court of Canada Rules of Procedure respecting the Unemployment Insurance Act ,⁶ which stops the clock from running during the Christmas recess. The very terms of rule 26.1(1) go against accepting such a contention since they refer to a time limit established under the rules, not by the statute itself. The Interpretation Act governs in the case of a statutory time limit.

[5]      The review application must be dismissed.

     Louis Marceau

     J.A.

Certified true translation

Peter Douglas

     FEDERAL COURT OF APPEAL

     Date: 19980529

     Docket: A-682-97

BETWEEN:

     CLAUDE LAMARRE,

     ÉRIC ALBERT,

     YANNICK BEAULIEU,

     MAURICE ALBERT,

     MARCO SHEINK

     Applicants

     - and -

     MINISTER OF NATIONAL REVENUE

     Respondent

     REASONS FOR JUDGMENT

     OF THE COURT

     FEDERAL COURT OF CANADA

     APPEAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:             A-682-97

STYLE OF CAUSE:          Claude Lamarre et al. v. Minister of National Revenue

PLACE OF HEARING:      Québec, Quebec

DATE OF HEARING:      May 29, 1998

REASONS FOR JUDGMENT OF MARCEAU J.A., DESJARDINS J.A. AND LÉTOURNEAU J.A.

DATED:             May 29, 1998

APPEARANCES:

Frédéric St-Jean                         FOR THE APPLICANT

Sylvie Gadoury                         FOR THE RESPONDENT

SOLICITORS OF RECORD:

Frédéric St-Jean                         FOR THE APPLICANT

Ste-Foy, Quebec

George Thomson                         FOR THE RESPONDENT

Deputy Attorney General of Canada

__________________

¹      Canada (A.G.) v. Vaillancourt, unreported decision of this Court dated May 14, 1992, file number A-639-91.

²      This subsection reads as follows:
            70.      (1)      The Commission or a person affected by a determination by, or a decision on an appeal to, the Minister under section 61 may, within ninety days after the determination or decision is communicated to him, or within such longer time as the Tax Court of Canada on application made to it within those ninety days may allow, appeal from the determination or decision to that Court in the manner prescribed.

³      Which reads as follows:
            5.      (1)      An appeal by an appellant from a determination by, or a decision on an appeal to, the Minister shall be instituted within 90 days after the determination or decision is communicated to the appellant, or within such longer time as the Court may allow on application made to it within those 90 days.
            (2)      Where a determination or decision referred to in subsection (1) is communicated by mail, the date of communication is the date it is mailed and, in the absence of evidence to the contrary, the date of mailing is that date specified on the determination or decision.
            (3)      An appeal shall be made in writing and shall set out, in general terms, the reasons for the appeal and the relevant facts.
            (4)      An appeal may be brought in the form set out in Schedule 5.
            (5)      An appeal shall be instituted by filing in, or mailing to, a Registry the original of the written appeal referred to in subsection (1).
(continuation of note 3)
            (6)      If an appeal is instituted by mail, the date that the appeal is instituted is the date stamped on the envelope at the post office and, if there is more than one such date, the date of instituting the appeal shall be deemed to be the earliest date.

⁴      These provisions read as follows:
            20.      (1)      Subject to the approval of the Governor in Council, rules for regulating the pleadings, practice and procedure in the Court shall be made by the rules committee.
            (1.1)      Without limiting the generality of the foregoing, the rules committee may make rules             . . .             ( h.1)      prescribing, for the purposes of subsection 28(1) of the Canada Pension Plan or subsection 70(1) of the Unemployment Insurance Act, when a determination by, or a decision on an appeal to, the Minister of National Revenue under section 27 of the Canada Pension Plan or section 61 of the Unemployment Insurance Act, as the case may be, is communicated to a person;

⁵      This paragraph reads as follows:
            44.      Where an enactment, in this section called the "former enactment", is repealed and another enactment, in this section called the "new enactment", is substituted therefor,             . . .             g)      all regulations made under the repealed enactment remain in force and are deemed to have been made under the new enactment, in so far as they are not inconsistent with the new enactment, until they are repealed or others made in their stead; . . .

⁶      Subsection 26.1(1) reads as follows:
            26.1      (1) For the purpose of calculating a time limit established under these rules, the period beginning on December 21 in any year and ending on January 7 of the next year shall be excluded.
            (2)      Where the time limited for the doing of a thing under these rules expires or falls on a holiday or a Saturday, the thing may be done on the day next following that is not a holiday or Saturday.