2013 FC 394
Ottawa, Ontario, April 17, 2013
PRESENT: The Honourable Madam Justice Heneghan
ATTORNEY GENERAL OF CANADA
ORDER AND ORDER
Angela March (the “Applicant”) seeks judicial review of the decision by the
Minister of National Revenue (the “Minister”), here represented by the Attorney
General of Canada (the “Respondent”). In that decision, made on June 7, 2012,
the Minister, by his duly authorized delegate D.K. DiMillo, declined to
positively exercise the discretion to allow an extension of the time limitation
set out in paragraph 256(3)(a) of the Excise Tax Act, R.S.C. 1985, c.
E-15 (the “ETA”).
following details are taken from the contents of the Certified Tribunal Record
(the “CTR”) and the affidavits filed by the parties, that is the affidavit of
the Applicant and the affidavit of Dave DiMillo, an employee of the Canada
Revenue Agency (“CRA”) who was the Director of the Summerside Tax Centre of the
CRA in Summerside, Prince Edward Island, at the times relevant to this
Applicant, a resident of Green’s Harbour, Newfoundland and Labrador, built a
new house which she occupied in May 2009. She applied for the “GST/HST New
Housing Rebate” pursuant to the ETA in April 2011, that is shortly before the
expiry of the two-year time-frame set out in paragraph 256(3)(a) of the ETA.
to her affidavit, the Applicant waited six months to make contact with the CRA
because she had read that processing the rebate claim can take up to six
months. When she called the CRA office in Summerside in early November 2011,
she was advised that there was no record of her rebate claim having been
received. She was also told that she should have sent the application in by
registered mail. Finally, the Applicant was told to re-submit her claim and to
ask for “Taxpayer Relief” since she was six months past the deadline for filing,
which would have been May 2011.
Applicant sent her rebate claim to the Summerside office, by facsimile, on
November 4, 2011. When she called to follow up, she was told that the fax had
not been received. A second fax sent by the Applicant was received by the CRA
on November 28, 2011. The Applicant received her Notice of Assessment on
December 7, 2011. In January 2012, the Applicant was advised to submit a Notice
of Objection to the Summerside Tax Centre.
record shows that the Summerside Tax Centre prepared a “Taxpayer Relief
Provision Fact Sheet” on two occasions. The first sheet was prepared on
December 7, 2011, by a taxation officer with the Summerside Tax Centre. This
sheet was reviewed and signed by two other employees, including an Assistant
Director, on December 12, 2011.
Applicant then received a letter dated February 29, 2012, advising that her
appeal had been declined. By letter dated March 21, 2012, the Applicant sought
reconsideration of her application for the exercise of discretion to allow her
late-filed application for the GST rebate to be processed.
second “Taxpayer Relief Provision Fact Sheet” was prepared by Officer Russell
Boyle after the Applicant requested reconsideration of the refusal of her
request for taxpayer relief. This sheet is dated April 11, 2012. It was
reviewed and signed by two other employees, including Mr. DiMillo, the
Director, on June 7, 2012.
letter dated June 7, 2012, the CRA advised the Applicant that her application
had been reviewed and that in the opinion of Mr. DiMillo, Director of the
Summerside Tax Centre, there was no basis upon which to grant an extension of
time to file the rebate application. The Applicant was also advised that she
could seek judicial review of this negative decision in the Federal Court of
Canada. On July 5, 2012, the Applicant commenced this application for judicial
Applicant argues that according to the report contained at page 23 of the CTR,
her rebate application would have been granted if filed on a timely basis.
Respondent submits that the decision is reasonable, having regard to the facts
and the guidelines that apply to the exercise of the discretion provided by
paragraph 256(3)(b) of the ETA.
first matter to be addressed is the standard of review. Since the issue here is
the manner in which the decision-maker, that is Mr. DiMillo, exercised the
discretion under the ETA, having regard to the facts presented by the
Applicant, the standard of review is reasonableness. The scope and content of
“reasonableness” was discussed by the Supreme Court of Canada in Dunsmuir v.
New Brunswick,  1 S.C.R. 190 at para. 47, as follows:
Reasonableness is a deferential standard animated by
the principle that underlies the development of the two previous standards of
reasonableness: certain questions that come before administrative tribunals do
not lend themselves to one specific, particular result. Instead, they may give
rise to a number of possible, reasonable conclusions. Tribunals have a margin
of appreciation within the range of acceptable and rational solutions. A court
conducting a review for reasonableness inquires into the qualities that make a
decision reasonable, referring both to the process of articulating the reasons
and to outcomes. In judicial review, reasonableness is concerned mostly with
the existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
relevant guidelines are set out in “Income Tax Information Circular” IC07-1,
entitled “Taxpayer Relief Provisions” (the “Guidelines”). Mr. DiMillo, at paragraph
5(g) of his affidavit, said that he considered the Guidelines. This document
sets out, in section 23, some circumstances when taxpayer relief can be
granted. These circumstances include extraordinary circumstances or actions of
the CRA. Section 24 allows the Minister to grant relief in circumstances not
described in section 23. Section 25 provides examples of “extraordinary
circumstances” as follows:
a) natural or man-made disasters such as,
flood or fire;
b) civil disturbances or
disruptions in services, such as a postal strike;
c) a serious illness or
d) serious emotional or
mental distress, such as death in the immediate family.
These four examples of
“extraordinary circumstances” are also listed in the CRA’s guide entitled
“GST/HST New Housing Rebate”. Although this document is not part of the CTR, it
is a publicly available document that is relevant to this proceeding.
Applicant did not specify any one of these events as being the reason why her
rebate application did not reach the Summerside office in May 2011, although
she suggested in her letter of March 21, 2012, that there may have been a
postal strike in the summer of 2011 that could have affected delivery of the
record shows that the “Taxpayer Relief Provision Fact Sheets” prepared on
December 7, 2011, and April 11, 2012, provided a brief review of the relevant
facts and analysis pertaining to the reasonable care taken by the Applicant. In
this case, there were six questions in this section. Five positive answers were
given; only one question was answered in a way that was contrary to the
Applicant’s interests. This was a question relating to whether the taxpayer,
that is the Applicant, had been “negligent/careless in complying with the law”?
to Officer Boyle’s April 11, 2012, analysis, the Applicant had been careless
because she “did not make a reasonable effort to ensure the rebate application
was received prior to the filing deadline.” Officer Boyle recommended that the
tax relief application be dismissed. He referred to a postal “dispute” as a
possible reason for the application not being received but also noted that the
postal service disruption took place in the spring / summer of 2011 on an
intermittent basis and only affected “certain Canada Post operations for very
short periods of time.”
his decision dated June 7, 2012, Mr. DiMillo made the following comments:
Your comments about the late-filed 2009 rebate
application, were noted and considered in relation to the legislation.
My review reveals no indication of any error or
delay on our part, or circumstances beyond your control. Also, the documents
provided do not demonstrate that the application was submitted prior to the
legislated filing deadline. As a result, I have concluded it would not be
appropriate to allow an extension of time to file your rebate application.
noted above, the decision made by Mr. DiMillo was a discretionary one pursuant
to subsection 256(3) of the ETA which provides as follows:
256(3) A rebate under this
section in respect of a residential complex shall not be paid to an
individual unless the individual files an application for the rebate on or
the day (in this subsection referred to as the “due date”) that is two years
after the earliest of
the day that is two years after the day on which the complex is first
occupied as described in subparagraph (2)(d)(i),
the day on which ownership is transferred as described in subparagraph
the day on which construction or substantial renovation of the complex is
substantially completed; or
any day after the due date that the Minister may allow.
(3) Les remboursements prévus au présent article ne sont versés que si le
particulier en fait la demande au plus tard :
à la date qui suit de deux ans le premier en date des jours suivants :
le jour qui suit de deux ans le jour où l’immeuble est occupé pour la première
fois de la manière prévue au sous-alinéa (2)d)(i),
le jour où la propriété est transférée conformément au sous-alinéa (2)d)(ii),
le jour où la construction ou les rénovations majeures de l’immeuble sont
achevées en grande partie;
à toute date postérieure à celle prévue à l’alinéa a), fixée par le ministre.
this case, the Guidelines, as noted above, provide guidance as to relevant
matters that should be considered by the decision-maker. I would note that the
questions on the Taxpayer Relief Provision Fact Sheet also provide guidance
since these questions are focused on the actions taken by someone looking for
the kind of relief sought by the Applicant here.
256(3)(b) of the ETA confers a discretion, not an obligation, on the Minister
with respect to GST application deadlines. That the Minister’s delegate is
afforded discretion means that no particular result, positive or negative, is preordained.
I refer in this regard to the decision of Justice Rouleau in Kaiser
v. Canada (Minister of National Revenue) (1995), 93 F.T.R. 66 at para. 10
where he said:
Absent bad faith on the part of the Minister, a
breach of the principles of natural justice or consideration of extraneous or
irrelevant factors, there is nothing to warrant the Court's interference with
the exercise of his discretion. I am unable to conclude any of these exist in the
same considerations apply in this case. There is nothing on the record to
support an argument that there was a breach of natural justice by the Minister
towards the Applicant. There is nothing on the record to show that there was
consideration of extraneous or irrelevant factors in this case.
my opinion, the decision here is reasonable. The decision-maker reviewed the
materials sent in by the Applicant. The discretion is to be exercised in
relation to the evidence submitted. In this case, there was effectively no
evidentiary foundation to support the Applicant’s request for a positive
exercise of discretion. There was no evidence, for example, about the timing of
a postal service interruption or the areas of the country that were affected by
it. The only document submitted by the Applicant was the completed application
for the GST rebate. However, this document cannot be considered to be
“evidence” in support of the taxpayer relief discretion.
am satisfied that the decision-maker considered relevant factors and did not
consider irrelevant factors. The refusal to extend the time for filing the GST
rebate application was reasonable in the circumstances.
the result, this application for judicial review is dismissed. In the exercise
of my discretion pursuant to the Federal Courts Rules, SOR/98-106, I
make no order as to costs.
for judicial review is dismissed. In the exercise of my discretion pursuant to
the Federal Courts Rules, SOR/98-106, I make no order as to costs.