M.N.R. v. Carew
A-1240-91
Hugessen J.A.
10/11/92
3 pp.
Appeal from Tax Court order dismissing application to extend time for filing reply to notice of appeal -- S. 44 requiring reply to be filed and served within sixty days after service of notice of appeal, but if respondent applies to Court within that time for extension of time for filing and serving reply, Court may grant such extension as it considers necessary -- S. 12 permitting Court to extend or abridge any time prescribed by Rules on such terms as are just -- Motion for direction extending time may be made before or after expiration of time prescribed -- Tax Court holding s. 12 not impinging on time limitations mandated by s. 44, which alone applies to filing and service of replies -- Appeal allowed -- S. 12 applies to empower Court in appropriate circumstances to extend time fixed by s. 44 after such time expired -- Form must not prevail over substance -- Although reply to notice of appeal served on 60th day, not filed until next day due to unexplained failure of messenger to whom filing entrusted -- Test not whether everything possible had been done to ensure reply filed on time, but whether what was done was reasonable in circumstances -- In context of this litigation, addition of one day to time of filing (not even to time of service) of reply of no consequence -- Tax Court of Canada Rules (General Procedure), SOR/90-688, ss. 12, 44.