Digests

Scott Slipp Nissan Ltd. v. Canada (Attorney General)

T-2195-03

2004 FC 1096, O'Keefe J.

10/8/04

23 pp.

Applicant had applied for judicial review of a Canada Customs and Revenue Agency (CCRA) decision to refuse full disclosure of documentation requested by applicant under "Appeals Renewal Initiative" protocol--Applicant assessed by CCRA under Excise Tax Act, requested copy of complete audit file--CCRA withheld certain third party information as prevented by Act--Attorney General now moves for order dismissing application as Court lacking jurisdiction, an appeal to Tax Court of Canada (T.C.C.) being available--In alternative, seeks order under Federal Court Rules, 1998, rr. 3, 4, 54, 221 (or pursuant to Court's jurisdiction over own process) striking application--Says applicant's case hopeless as attempting to rely on legitimate expectations doctrine to defeat statutory duty and to fetter discretion--Relevant sections of Act set out at great length in reasons for order--As M.N.R. did not deal with applicant's notices of objection within 180-day limit (Act, s. 306), Attorney General submits applicant's remedy appeal to T.C.C. to vacate assessments or have reassessment--Also argued dispute re: discovery of documents must be under T.C.C. practice, Federal Court review precluded by Federal Courts Act, s. 18.5--Applicant says since seeks to review disclosure refusal, not assessments, s. 18.5 does not oust Federal Court's jurisdiction--Needs full disclosure provided for under Excise Tax Act, s. 295 to meaningfully pursue notices of objection--Jurisdictional issue reviewed by Morneau P. in Beaudry v. Canada (Customs and Revenue Agency) (2001), 215 F.T.R. 18 (F.C.T.D.), who noted that, under s. 18.5, "where appeal procedures are provided by law they must be given priority, and to this end [s. 18.5] excludes judicial review"--But, while Federal Court lacks judicial review jurisdiction to vacate, review tax assessment, instant application is not disguised attempt to challenge assessments--Applicant should have forum to argue CCRA's decision was unlawful--S. 18.5 not bar to jurisdiction herein--Applicant not attacking substance of assessments--S. 18.5 precludes judicial review only to extent matter may be appealed to T.C.C.--Excise Tax Act makes no provision for appeal of Minister's disclosure decision--Non-disclosure decision not so intertwined with assessments that any attack on disclosure decision is attack on assessments--Attorney General's approach would compel taxpayers to file uninformed notices of objection having scant chance of success--Purpose of notice of objection stage to give taxpayer meaningful opportunity to persuade M.N.R. assessment should be vacated or reassessment made--Not to be de facto forcibly waived where party disputes sufficiency of disclosure --As written by Sharlow J.A. in Webster v. Canada (2003), 312 N.R. 236 (F.C.A.), only once objection process is complete, taxpayer deprived of opportunity to argue in Federal Court through judicial review application that process employed by Minister unfair--Application herein filed before objection process was complete--Obliging taxpayer to forfeit meaningful objection process could frustrate legislation's disclosure provisions--Federal Court has jurisdiction over case--Proceeding directly to T.C.C. not adequate alternative remedy--In context herein, objection process seen as separate from T.C.C. appeal and impugned decision not truly interlocutory--Nor could Court agree with Attorney General's argument on legitimate expectations issue--Extent of CCRA's disclosure obligations, competing interests, Appeals Renewal Initiative are matters for consideration by judge hearing judicial review application--Excise Tax Act, R.S.C., 1985, c. E-15, ss. 295 (as enacted by S.C. 1990, c. 45, s. 12; 1993, c. 27, s. 128; 1996, c. 21, s. 67; 1997, c. 10, s. 236; 1998, c. 19, s. 284; 1999, c. 26, s. 38; 2000, c. 14, s. 33; 2001, c. 17, s. 260; 2003, c. 15, s. 68), 306--Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.5 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 28)--Federal Court Rules, 1998, SOR/98-106, rr. 3, 4, 54, 221.