[2011] 3 F.C.R. D-11
CUSTOMS AND EXCISE
Excise Tax Act
Appeal from Federal Court decision (2010 FC 1188) dismissing judicial review of decision by Assistant Commissioner of the Legislative Policy and Regulatory Affairs Branch (Assistant Commissioner) of Canada Revenue Agency (CRA) declining to recommend remission of appellant’s harmonized sales tax (HST) debt pursuant to Financial Administration Act, R.S.C., 1985, c. F-11, s. 23(2)—Debt arising from failure to collect HST from non-natives purchasing gasoline, tobacco on reserve—Appellant arguing that CRA remission guidelines requiring Assistant Commissioner to attach great weight to extreme financial hardship sustained by taxpayer if required to pay HST—In contrast, guidelines only dealing briefly with taxpayer non-compliance as basis for refusing remission—Guidelines not inferring that remission normally granted if applicant demonstrating extreme financial hardship—Amount of space in guidelines devoted to hardship not indicative of weight to be given to it by decision maker—Language of s. 23(2) not indicating that Parliament intended that debt normally be remitted if payment causing extreme hardship—Open-ended terms enabling Minister of National Revenue to take into account wider impact of recommending remission, including public interest in integrity of tax system—Decision maker having to balance competing interests to determine whether collection of tax unreasonable, unjust or otherwise not in public interest—Assistant Commissioner’s decision not precluding consideration of factors not mentioned in guidelines—While appellant’s non-compliance fatal to its request for remission, decision made in light of facts herein, not improperly predetermined by rigid approach to guidelines, without regard to totality of facts, width of statutory discretion conferred by s. 23(2)—Not unlawful for administrative decision maker to base decision on valid, non-exhaustive guidelines, formulated as decision-making framework to promote principled consistency in exercise of discretion, as long as guidelines not treated as if they were law, and exhaustive of factors that may be considered—That said, applicants for remission, wider public should have access to basis on which discretion conferred by s. 23(2) exercised—Appeal dismissed.
Waycobah First Nation v. Canada (Attorney General) (A-490-10, 2011 FCA 191, Evans J.A., judgment dated June 6, 2011, 12 pp.)