Date: 20050208
Dockets: A-53-03
A-62-03
Citation: 2005 FCA 57
CORAM: ROTHSTEIN J.A.
EVANS J.A.
BETWEEN:
DAVID M. SOSIAK
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
Heard at Toronto, Ontario, on February 1, 2005.
Judgment delivered at Ottawa, Ontario, on February 8, 2005.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
NOËL J.A.
Date: 20050208
Dockets: A-53-03
A-62-03
Citation: 2005 FCA 57
CORAM: ROTHSTEIN J.A.
NOËL J.A.
EVANS J.A.
BETWEEN:
DAVID M. SOSIAK
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
[1] David M. Sosiak has brought two applications for judicial review in respect of orders by Justice Bell of the Tax Court of Canada. On consent, the applications were ordered to be heard together.
[2] The subject of the first application for judicial review (A-53-03) is an order dated January 10, 2003 (which Justice Bell amended by an order dated January 22, 2003), arising from Mr. Sosiak's appeal against his tax assessments for the years 1996, 1997 and 1998. In this order, issued following a telephone conference, the Judge granted a motion brought on behalf of the Crown to quash the appeals for the years 1996, 1997 and 1998, and several subpoenas that had been addressed to various individuals.
[3] The second application (A-62-03) concerns an order dated February 5, 2003, in which, following a hearing held on January 28, 2003, Justice Bell dismissed Mr. Sosiak's appeal against the reassessment of his tax liability for the year 1999.
A-53-03
[4] The Judge stated in his order of January 10, 2004, that Mr. Sosiak's tax liability for 1996, 1997 and 1998 had been assessed as nil. An affidavit from an official of Canada Customs and Revenue Agency stated that, following a request by Mr. Sosiak for a downward adjustment, he had been notified that no tax was owing for those years.
[5] Since Mr. Sosiak failed to produce to this Court any evidence that demonstrated that Justice Bell had erred in finding that Mr.Sosiak had been assessed as owing no tax for any of the years 1996, 1997 and 1998, his appeal to the Tax Court was misconceived. A taxpayer cannot appeal a nil assessment: see, for example, The Queen v. The Consumers' Gas Company Ltd., [1987] 1 CTC 79, 83-84 (F.C.A.).
[6] I would also note that, although well aware that the Crown was taking the position that his appeal was invalid for the above reason, Mr. Sosiak had not produced to the Tax Court evidence from his records showing that tax had been found to be owing for the years 1996, 1997 and 1998.
[7] Since, as I have concluded, Mr. Sosiak has not proved that Justice Bell erred in concluding that he owed no tax for those years and, consequently, had no right of appeal, he is not entitled to seek relief on the basis of the Tax Court's disposition of an interlocutory matter (that is, the quashing of the subpoenas) arising from the appeal. Accordingly, I would dismiss his application for judicial review in Court File number A-53-03.
A-62-03
[8] In the application for judicial review of the order dated February 5, 2003, dismissing his appeal against the reassessment for the year 1999, Mr. Sosiak says that, at the hearing, Justice Bell refused him an adjournment, seemed to be angry and "berated" him. Mr. Sosiak attributes this conduct to the previous interlocutory motion and to the fact that he had filed an application for judicial review of the Judge's order of January 10. I infer from these assertions that Mr. Sosiak is alleging that the order of February 5, 2003, should be set aside on the ground that Justice Bell's conduct at the hearing of the appeal on January 28, 2003, gave rise to a reasonable apprehension of bias.
[9] Although he was advised of the name of the Court reporter, from whom he could order a copy of the transcript of the proceeding, Mr. Sosiak has not obtained a transcript. In the absence of an official record of what was said at the hearing, Mr. Sosiak has not proved the facts necessary to establish his ground of review. The characterization of Justice Bell's conduct contained in Mr. Sosiak's affidavit, which does not purport to detail what the Judge allegedly said, is insufficient to prove the serious allegation of bias. I would therefore dismiss the application for judicial review in Court File number A-62-03.
[10] I would award the Crown its costs in these matters.
"John M. Evans"
J.A.
"I agree
Marshall Rothstein J.A."
"I agree
Marc Noël J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKETS: A-53-03 and A-62-03
STYLE OF CAUSE: DAVID M. SOSIAK v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 1, 2005
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: ROTHSTEIN AND MALONE JJ.A.
DATED: February 8, 2005
Mr. David M. Sosiak FOR THE APPELLANT
Mr. Roger Leclaire FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. David M. Sosiak
St. Catharines, Ontario FOR THE APPELLANT
John H. Sims
Deputy Attorney General of Canada FOR THE RESPONDENT