Digests

Nautica Motors Inc. v. M.N.R.

T-172-01

2002 FCT 422, O'Keefe J.

12/4/02

18 pp.

Application for mandamus to compel respondent to process Harmonized Sales Tax (HST) returns, provide corresponding credit returns--Applicant, 506913 N.B. Ltd. filing, but not receiving credit for August, September, October 2000 HST returns--Applicant Nautical Motors Inc. alleging, but respondent denying, still owed credit for May 1998 return-- Applicants alleging, respondent denying applicants owed $1.4 million in unpaid tax returns--(1) Preliminary motion to dismiss proceeding for mootness or because not within Court's jurisdiction to determine whether applicants properly assessed by Minister, dismissed--Excise Tax Act, s. 229 requiring Minister to pay any refund claimed in return to person "with all due dispatch after the return is filed"-- Respondent has yet to make assessment as to amount of refund applicants entitled to receive--Issue as to amount of refund, if any, applicants entitled to receive still live issue--Court not asked to determine whether applicants properly assessed, but to determine whether applicants assessed at all--Court has jurisdiction to determine this question--(2) Application of eight-part test for mandamus in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.)--(i) S. 229 imposing public legal duty to act as Minister must make assessment to determine whether refund due--(ii) Duty owed to applicants as filed return claiming refund--(iii) Applicants satisfying conditions precedent giving rise to duty to process return claiming refund: application filed, available requested information provided, applicants made demands to have returns processed and that audits be completed, apparently sufficient length of time in which to returns filed in June 1998--(iv) Rules set out in fourth part of test not applicable as duty sought to be enforced not discretionary (respondent must process return to determine whether refund claimed payable, and in order to process return respondent must complete assessment)--(v) No other alternative remedy (eg. notice of objection or appeal to Tax Court of Canada) existing until assessment available--(vi) Order requiring Minister to take steps necessary to process return, thus of practical effect--(vii) No equitable bar to prevent issuance of order--(viii) Balance of convenience favouring applicants in light of time elapsed since applications filed--Application for mandamus compelling respondent to process HST returns granted--Application for mandamus to order respondent to issue credit returns premature until assessment of account completed--Excise Tax Act, R.S.C., 1985, c. E-15, s. 229 (as enacted by S.C. 1990, c. 45, s. 12).