Ottawa, Ontario, this 19th day of October, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
THE APPLICATION
[1] This matter began as an application for judicial review of a second-level decision of the Canada Revenue Agency (CRA), communicated to the Applicant by Mr. Gerald Travis on October 6, 2005 (Decision).
[2] The Decision indicated that CRA would waive interest for an additional period of 16 weeks.
[3] The interest was charged on a Notice of Reassessment dated June 14, 2004 for the 1999-08-31 to 2000-08-30 tax year.
[4] The Applicant sought an order that the Decision be set aside, with costs, and that the matter be referred back to another decision-maker with appropriate directions.
THE HEARING
[5] The hearing for the application came before me on July 12, 2006 in Halifax, Nova Scotia.
[6] Applicant’s counsel requested an adjournment of the hearing on July 12, 2006 to allow time for a resolution to the underlying income tax reassessment. I refused the adjournment and heard full argument. However, I also agreed to reserve judgment to give the parties some time to resolve their dispute. They were directed to report back to the Court on their progress in this regard.
[7] Before I was able to render reasons and order on the application, the Respondent received instructions to consent to have the Decision sent back for re-determination by a different decision-maker, and the Respondent informed the Court of this consent.
[8] The Respondent is also agreeable to having the matter sent back for re-determination on the understanding that the 16 weeks of interest relief that had already been granted would not be revised on a new review.
[9] The Applicant would not consent to having the matter sent back for re-determination and indicated that it wanted the Court to deal with the application and issue reasons on the merits.
THE MOTION
[10] Because the Applicant would not consent to having the application sent back for re-determination by a different decision-maker, the Respondent brought a motion in writing dated September 8, 2006 (Motion) pursuant to Rules 3 and 392 of the Federal Court Rules, 1998 and sections 18(1) and 18.1(3) of the Federal Court Act asking the Court to order that the application of October 19, 2005 made by the Applicant be granted and that the matter be returned for reconsideration.
[11] The Applicant has resisted the Motion and wants the Court to deny it and then proceed to deal with the Application and issue reasons that can be used when the matter is returned for re-consideration.
ANALYSIS
[12] The Court will deal with the Application and the Motion together.
[13] It would appear from the Motion materials that the Applicant is resisting the Motion because:
a) The Motion makes no mention of the costs sought by the Applicant in the Application;
b) The Motion makes no mention of the reasons for which the Decision is referred back for re-consideration, so that the new decision-maker will not know what precipitated the judicial review application.
[14] The Applicant appears to have a particular concern that while the Respondent has identified two possible errors in the Decision to justify its consent to a re-consideration, the Respondent has not addressed the Applicant’s allegations regarding a reasonable apprehension of bias.
[15] The Applicant sums up his objections as follows:
It would frustrate the expectation and right of aggrieved parties who seek recourse from this Honourable Court via judicial review applications if the respondent in such applications could choose to dodge issuance of potentially adverse reasons for judgment simply by accepting after the launch of such applications that the matter be referred back for re-election. There is no effectual judicial supervision inherent in such practice.
[16] The Applicant feels aggrieved in this case because “the Respondent has had its revelation on the road to Damascus following full written and oral argument by both parties.”
[17] This is a slightly odd situation because of my agreement to reserve judgment after the hearing in order to give the parties time to work out their difference. In the normal course, had they reached a timely settlement, the Application would have been dismissed by consent and the parties would have moved forward in accordance with their settlement.
[18] It is not entirely clear to the Court why a settlement has not proved possible, and I think I must now deal with the Application and the Motion on the understanding that a disposition of these matters cannot be incorporated into a general settlement.
[19] However, I do not think it is possible for the Court to simply ignore the fact that the Respondent has consented to the Application and has agreed that the Decision should be returned for re-consideration. That possibility was not specifically addressed at the hearing of the Application when I agreed to reserve judgment, but it was certainly an eventuality that could not be left entirely out of account.
[20] It is not made clear in the Applicant’s response to the Motion whether the Applicant is prepared to accept a denial of the Applicantion if the Court now gives it full consideration and issues reasons for judgment. But it seems to me that could be one result of proceeding in accordance with the arguments put forward by the Applicant on the Motion.
[21] This could potentially result in a bizarre situation whereby the Court denies the Application even though the Respondent has indicated its consent.
[22] It seems to me that the Applicant is simply assuming the Court will grant the Application. But the fact is that the Applicant is not yet an aggrieved party – to use the Applicant’s words – because the Court has yet to make a decision on the merits of the Application.
[23] It is quite normal in judicial review proceedings for the Court to acknowledge and rely upon a consent without reviewing the merits. A consent merely indicates that the Respondent agrees that the matter should be re-considered. This is, after all, the relief that the Applicant seeks. There might also be directions and terms imposed by the Court, even though the parties in the present case have reached no formal agreement as to what those directions might be.
[24] But if I look at the grounds raised by the Applicant in the Application, and the materials that have been filed with the motion, it seems clear to me that the Respondent is conceding that the Court could conclude that Decision was made without reference to the waiver provisions in the Act that allow the deadline to be postponed, and that the decision-maker did not address the offer made by the Applicant to waive the statutory time limits. What appears to trouble the Applicant is that there is no reference to the apprehension of bias ground.
[25] I regard the costs issue as entirely separate, and the fact that the Respondent consents to the Application at such a late date can obviously be addressed in terms of costs.
[26] I have reviewed the apprehension of bias issues raised by the Applicant in his original application. He has not convinced me that he has raised sufficient evidence to satisfy the jurisprudence on this point. When the wording he cites is read in its entire context I cannot conclude that a reasonable person, fully appraised of that context, would apprehend bias. Hence, I do not believe that anything needs to be said on the bias matter for the benefit of a future decision-maker.
[27] As regards the other possible errors, I believe the Respondent has already sufficiently acknowledged the difficulties in its materials to allow a future decision-maker to take full note of the problems that arose in this case and to avoid them in future. I do not think it would be prudent or an efficient use of Court time for me to now provide a formal analysis of those grounds that could be at odds with the concessions already made by the Respondent.
[28] Hence, I believe that the most just, efficient and cost effective way to dispose of the Application and the Motion is to treat the Motion as a concession and agreement by the Respondent that the Decision should be returned for reconsideration on the understanding that the 16 weeks interest relief already granted will not be revised and that the issues raised by the Applicant in the Application will, apart from the bias issue, be fully considered and taken into account in any new re-consideration and decision. I believe this result meets the concerns of both parties.
ORDER
THIS COURT ORDERS that
1. The 369 Motion is dismissed without costs to either side;
2. The Application is granted and the matter is referred back to the Director of another Tax Service Office of the Canada Revenue Agency for reconsideration, which reconsideration:
a) will address the fact that a statutorily imposed deadline under the Act can be postponed;
b) will address any waiver of statutory time limits provided by the Applicant; and
c) will not revisit the 16 weeks of interest relief already granted by the Minister.
3. The Applicant shall have his costs of the Application.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1833-05
STYLE OF CAUSE: 1373997 ONTARIO INC. v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: HALIFAX, NOVA SCOTIA
DATE OF HEARING: JULY 12, 2006
REASONS FOR JUDGMENT OF THE COURT BY: October 19, 2006
APPEARANCES:
|
|
FOR THE APPLICANT
|
|
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Halifax, Nova Scotia |
FOR THE APPLICANT
|
|
Deputy Attorney General of Canada |
FOR THE RESPONDENT
|