Calgary, Alberta, June 6, 2007
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
Applicant
and
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1] The Applicant, Irene Gjernes, seeks judicial review of a negative decision dated September 6, 2006 by the Minister of National Revenue (the Minister) under subsection 220(3.2) of the Income Tax Act (the Act). The decision denied the Applicant’s second-level fairness request for the late filing of a subsection 45(2) election to allow the Applicant to designate her home as her principal residence.
[2] The Applicant is an 87-year old widow who moved to a nursing home in 2001. From 2001 to 2004 her home was a rental property. The Applicant hired a “tax specialist” to file her tax return. The specialist mistakenly failed to file the subsection 45(2) election with the Applicant’s year 2000 tax return. The election under subsection 45(2), would have permitted the property to be designated a principal residence, and consequently would allow the Applicant to avoid capital gains taxes on the disposition thereof. Upon the Applicant being made aware of the mistake, she took steps, through her daughter, to correct the error. She immediately requested a late election under subsection 45(2).
2. The Impugned Decision
[3] The Applicant’s request was denied on a first-level review and, upon request, a second-level review was conducted. On July 17, 2006, a second-level Review Fairness Report was prepared which recommended that the Applicant’s request be denied. The recommendation was accepted by the Minister and in a letter dated September 6, 2006 the following reasons for denying the request were provided:
(a) the election under subsection 45(2) was rescinded pursuant to subsection 45(4) of the Act because the applicant claimed capital cost allowance (“CCA”) during the 2000 to 2003 taxation years;
(b) the Applicant failed to provide supporting information that would “clearly satisfy” any situations outlined in paragraph 10 of IC92-1 Guidelines for Accepting Late, amended or Revoked Elections (the “Guidelines”);
(c) on the record it was reasonable to conclude that the Applicant made the request for retroactive tax planning purposes, pursuant to paragraph 11 of the Guidelines.
[4] The Respondent acknowledges that the decision contains an error of law in finding that subsection 45(4) of the Act applies to prohibit a late election under subsection 45(2) where CCA had been deducted. Subsection 45(4) only applies to subsection 45(3). Consequently the Respondent contends that the decision should be set aside and the matter should be returned to the Minister for re-determination. The Respondent argues that this is the only remedy available to the Applicant in the circumstances.
[5] The Applicant however, appears to be requesting more. In her written submissions the Applicant is also requesting that the Court allow the Applicant to file her subsection 45(2) principal residence election and to receive the benefits thereof with costs.
[6] The remission of an application by the Court to a decision-maker with directions that, in effect, requires a specific result, is a remedy to be granted in “extraordinary circumstance”. See Simmonds v. Canada (Minister of National Revenue- M.N.R.), 2006 FC 130, [2006] F.C.J. No. 184 (QL) and Rafuse v. Canada (Pension Appeals Board) 2002 FCA 31; [2002] F.C.J. No. 91 (QL). Such extraordinary circumstances are not present here. The record on this application reveals no pure question of law which is dispositive of the case, nor a question of law based on uncontroverted evidence and accepted facts, nor clearly conclusive evidence that will lead to only one possible conclusion. The case requires an assessment of evidence on factual issues. In the result, the remedy sought by the Applicant directing a specific result cannot be granted.
[7] In oral submissions counsel for the Applicant invited the Court to consider arguments in respect to the other two reasons advanced by the decision-maker for denying the second level request. In essence the Applicant argues that the Minister did not properly apply the Guidelines and erred in finding that she failed to provide information to support the situations set out in the Guidelines. The Applicant states that the Minister failed to consider the material facts on the record in respect to the Guidelines and was wrong in requiring that the Applicant “clearly satisfy” the situations outlined in the Guidelines when all that is legally required are reasonable steps to comply with the law. Finally, the Applicant argues that it was unreasonable for the Minister to conclude that the Applicant made the request for retroactive tax planning purposes pursuant to paragraph 11 of the Guidelines. The Applicant disagrees with this finding stating that such a conclusion is not supported in the evidence and simply not plausible.
[8] The error of law conceded to by the Respondent is determinative of the within application. It is therefore unnecessary for me to decide the other arguments of the Applicant. However, in sending the matter back for reconsideration by a different ministerial delegate, the following observations may be useful. In respect to the Minister’s findings of fact, it is not the role of the Court on judicial review to substitute its discretion for that of the Minister. The Court may intervene and set aside the discretionary decision under review only if that decision was made in bad faith, if its author clearly ignored some relevant facts or took into consideration irrelevant facts or if the decision is contrary to law. While I make no comment on the reasonableness of the Minister’s factual findings, I express the following concern. By requiring the Applicant to adduce information that would “clearly satisfy” any situations outlined in paragraph 10 of the Guidelines, the Minister may have imposed a heavier onus on the Applicant, in the circumstances than that required by law. It must be remembered the Guidelines are useful as a guide to promote consistency in decision making. The situations outlined in the Guidelines are not intended to be exhaustive and are not meant to restrict the spirit or intent of the legislation. The fairness provisions were enacted in recognition for the need for relief from certain provisions of the Act that can result in undue hardship because of the complexity of the tax laws and the procedural issues entailed in challenging tax assessments.
[9] For the above reasons, the application for judicial review will be allowed. The Minister’s Decision denying the Applicant’s fairness request for the late filing of a subsection 45(2) election to allow the Applicant to designate her home as her principal residence will be quashed. The matter will be sent back for reconsideration before a different ministerial delegate to be decided in accordance with these reasons.
[10] The Applicant will have her cost on the application but only in respect to the assessable services performed and disbursements incurred up to the date of service of the Respondent’s offer to settle.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review will be allowed. The Minister’s Decision denying the Applicant’s fairness request for the late filing of a subsection 45(2) election to allow the Applicant to designate her home as her principal residence is quashed.
2. The matter will be sent back for reconsideration before a different ministerial delegate to be decided in accordance with these reasons.
3. The Applicant will have her cost on the application but only in respect to the assessable services performed and disbursements incurred up to the date of service of the Respondent’s offer to settle.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1776-06
STYLE OF CAUSE: Irene Gjernes v. Canada Revenue Agency
PLACE OF HEARING: Calgary, Alberta
APPEARANCES:
Mr. Kevin C. Mellor FOR THE APPLICANT
Ms. Belinda Schmid FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mellor Law Firm FOR THE APPLICANT
Regina, Saskatchewan
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada