INCOME TAX |
Practice |
Beaudry v. Canada (Customs and Revenue Agency)
T-783-00
2001 FCT 1347, Morneau P.
7/12/01
12 pp.
Motion to strike application for declaratory judgment pursuant to Federal Court Act, s. 18(1)(a), (b), Canadian Charter of Rights and Freedoms, ss. 7, 11(b), 24(1), 26 asking Court to vacate assessments made against plaintiffs for taxation years between 1982 and 1994--Taxpayers affected were members of partnerships known as "Les Associés de recherche médicale canadienne" (ARMC) and "Les Associés de recherche médicale canadienne no. 2" (ARMC2)--Motion allowed--Power to strike must be considered here in accordance with this Court's inherent jurisdiction, not against action but application (see David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.))--Defendants' conduct complained of is time then [Minister of] National Revenue allowed to elapse between date plaintiffs' objections received and date latter ratified assessment initially made--In circumstances, Court does not have jurisdiction to deal with vacating of assessment--Once tax assessment made, binding on taxpayer and MNR until reversed, if necessary, by proper authorities: Income Tax Act, s. 152(8)--S. 152(8) excludes any remedy other than objection and appeal to have tax assessment reviewed or vacated--Federal Court Act, s. 18.5 excluding judicial review where law provides specific right of appeal--Relying on these provisions, courts have consistently dismissed for lack of jurisdiction proceedings for judicial review which ultimately seek to have tax assessments vacated or reviewed--Consequently, Court must strike plaintiffs' application as it lacks jurisdiction over latter--Plaintiffs' motion also frivolous and vexatious--Substantive provisions of Charter, ss. 7, 11(b), and remedial provisions (ss. 24, 26), do not apply to case at bar--As regards delay in ratifying assessments, large part of time which elapsed after finding notices of objection did so because of fact many plaintiffs themselves agreed in writing to suspend objections while T.C.C. ruled on three test cases--Others could have presented their case relying on s. 169(1)--In any case, Minister's inaction cannot lead to vacating of assessments as remedy--Income Tax Act, S.C. 1970-71-72, c. 63, ss. 152(8), 169(1) (am. by S.C. 1980-81-82-83, c. 158, s. 58; 1984, c. 45. s. 70(1); 1991, c. 49, s. 140(1))--Federal Court Act, R.S.C., 1985, c. F-7, ss. 18, 18.5--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 11, 24, 26.