| Citation: |
Tele-Mobile Company Partnership v. Canada (Revenue Agency), 2010 FC 839, [2010] 4 F.C.R. D-2 |
T-990-09 |
Customs and Excise
Excise Tax Act
Motion by Canada Revenue Agency (CRA) to strike out application for writ of prohibition preventing CRA from assessing GST on international roaming fees charged by applicants (Telus) to customers—Alternatively, CRA appealing Prothonotary’s decision ordering CRA’s affiant to inform herself, provide written answers to cross-examination questions, provide documents—CRA previously informing Telus fees for international roaming services subject to GST on basis roaming charges treated in industry as single supply of telecommunication services—In response, Telus requesting CRA to conduct assessment only after 2006—CRA denying request—Issues: (1) whether prohibition application should be struck because Court cannot grant relief sought; (2) whether Prothonotary’s order should be reversed—Telus contending CRA’s timing militating against granting motion—While timing relevant in most circumstances, not so herein—Prothonotary’s order arguably changing application’s nature into something more complex—Bringing CRA’s motion now rather than occupying Court’s time with application allegedly doomed to fail making sense—Limited authorities supporting position that prohibition application not clearly bereft of any chance of success—Fact of raising novel issue not dictating that it is bereft of any chance of success—CRA not meeting test required for striking application—CRA also failing to show Prothonotary’s decision clearly wrong—Although Telus’s document request not made in accordance with Federal Courts Rules, SOR/98-106, r. 91, if issue arises during cross-examination, parties are to be encouraged to make requests at that time with the hope, expectation opposing party will be willing to provide documents—Prothonotaries are to be given flexibility to apply rules in efficient, practical, just manner—If situation such as present one arising, and Prothonotary of view that production warranted, technical reading of r. 91 should not invalidate order—Motion dismissed; appeal dismissed.
Tele-Mobile Company Partnership v. Canada (Revenue Agency) (T-990-09, 2010 FC 839, Zinn J., order dated August 25, 2010, 16 pp.)