INCOME TAX |
Practice |
Del Zotto v. M.N.R.
T-1724-99, T-1755-99
Lemieux J.
3/12/99
37 pp.
Application for judicial review of decisions by Hearing Officer appointed to preside over inquiry initiated by MNR pursuant to ITA, s. 231.4 into financial affairs of applicant--Applicant raised issues of institutional independence and impartiality, overbreadth of terms of reference, presence of witnesses and rights of counsel for applicant, rights of witnesses and counsel for witness--Applications dismissed--Standard of correctness applied--Security of tenure aspect of institutional independence not applicable in case of ad hoc tribunal as here--Financial security not issue in view of contract with National Revenue--In sum, statute gave Hearing Officer required autonomy to function in independent, impartial way--Hearing Officer met duty of fairness required in context of inquiry conducted herein--Based on R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627, purpose of statute herein meeting requirements of statute in terms of proper purpose: obtaining information relevant to tax liability of person whose liability to tax under investigation--Scope of purpose sufficiently identified to applicants in broad context of duty of fairness (inquiry launched in respect of specific taxation years and subpoena identifying specific transactions) that requirements of statute and requirements of fairness met herein--Parliament intended MNR have investigatory tools for purpose of enforcement and administration of ITA--In fact-finding inquiries such as herein, Court must be alert to danger of unduly burdening and complicating law enforcement investigative processes: Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181--Hearing officer correctly held since no charges had been laid, no right to disclosure to either witness or to applicant--Inquiry purely administrative matter which neither decided nor adjudicated upon anything--Not judicial or quasi-judicial inquiry but private investigation--In particular circumstances, purpose and subject matter of inquiry have been sufficiently identified--With respect to terms of reference, Hearing Officer properly reduced those by confining inquiry to proper purpose, namely, administration and enforcement of ITA--Parliament, on reasonable construction of statute, did not intend that there be hearing--In context of inquiry, certain matters may come forward where Hearing Officer required to exercise powers under Inquiries Act--If Parliament had intended full extent of participatory rights to flow from word "hearing", would have specified it clearly as it has elsewhere--Subpoena validly authorized and properly issued and none of changed circumstances identified by counsel vitiate in any way validity of subpoena--Del Zotto v. Canada, [1997] 3 F.C. 40 (C.A.); Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181; and Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425 applied as to representation by counsel-- Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1, s. 231.4 (as am. by S.C. 1999, c. 17, s. 168).