http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/135287/index.do
Ghaffar v. Canada (January 28, 2016 – 2016 FCA 33, Trudel (author), Stratas, Ryer JJ. A.).
Précis: Graham J. of the Tax Court dismissed Mr. Ghaffar’s application to set aside a previous decision dismissing his appeal for failure to appear at a status hearing. Mr. Ghaffar appealed to the Federal Court of Appeal. The Court of Appeal dismissed the appeal from the Bench, finding no reversible error.
Decision: Mr. Ghaffar simply did not put forward a case sufficient to call for overturning the Tax Court’s discretionary decision on his application:
[3] Whether to extend time is a discretionary decision to be made in accordance with a four-factor test, enunciated by the Tax Court at paragraph 4:
a) a continuing intention to pursue the appeal;
b) that the appeal has some merit;
c) that no prejudice to the Respondent arises from the delay; and
d) that a reasonable explanation is given for the delay.
[4] The Tax Court found that while Mr. Ghaffar’s tax appeal has merit, and although he had a reasonable explanation for failing to attend the status hearing, he nonetheless failed to satisfy each of the other elements. In particular, Mr. Ghaffar demonstrated a lack of intention to pursue his appeal by failing to meet his undertakings, the respondent would suffer irreparable prejudice, and Mr. Ghaffar was unable to provide a reasonable explanation for the delay in bringing the application to set aside the judgment dismissing his appeal, at least 16 months after the deadline for such an application (Tax Court reasons at paragraphs 15 and 20).
[5] We do not accept Mr. Ghaffar’s submissions that Graham J. applied the incorrect legal test or that his approach was unjustifiably rigid. The test he applied is consistent with the authorities on which Mr. Ghaffar relies (Izumi v. The Queen, 2014 TCC 108; GMC Distribution Ltd. v. The Queen, 2009 TCC 287), setting out the same four factors.
[6] In any event, Graham J. followed the binding authority of this Court (Tomas v. Canada, 2007 FCA 86, [2007] 3 C.T.C. 75), and his reasons demonstrate careful consideration of the relevant factors and the evidence underlying his decision. Even if we were to accept Mr. Ghaffar’s argument that Graham J. erred in his assessment of prejudice to the appellant relative to that of the respondent, this would not outweigh the other considerations or justify our interference with his overall conclusion.
As a result the appeal was dismissed with costs.