Date: 20110602
Docket: A-97-10
Citation: 2011 FCA 186
CORAM: SHARLOW
J.A.
TRUDEL
J.A.
STRATAS
J.A.
BETWEEN:
RONNIE LOUIS BOZZER
Appellant
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
(as represented by the Minister of
National Revenue in his capacity as
Minister responsible for the Income
Tax Act), CANADA REVENUE AGENCY and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT
STRATAS J.A.
[1]
Subsection
220(3.1) of the Income Tax Act, R.S.C. 1985, c. 1
(5th Supp.) allows the Minister to waive or cancel any portion of interest
or penalties owing under the Act. It prescribes a ten year limitation period.
But how is that ten year period to be determined? The answer to that question,
a question of statutory interpretation, will determine the outcome of this
appeal.
[2]
The
Federal Court judge agreed with the Minister’s view of how the ten year period
is to be determined under subsection 220(3.1) of the Act: 2010 FC 139. The appellant,
Mr. Bozzer, disagrees and, in this Court, proposes an interpretation that is
more generous to taxpayers.
[3]
As
this is a legal issue concerning the proper interpretation of subsection
220(3.1) of the Act, the standard of review of the decision of the Federal
Court judge is correctness: Redeemer Foundation v. M.N.R., 2006 FCA 325
at paragraph 24 (affirmed, without comment on this point, at [2008]
2 S.C.R. 643, 2008 SCC 46).
[4]
For
the reasons below, I am of the view that Mr. Bozzer’s interpretation of
subsection 220(3.1) is the correct one.
A. Subsection 220(3.1) of the Act
[5]
Subsection
220(3.1) provides as follows:
220. (3.1) The Minister may, on or before
the day that is ten calendar years after the end of a taxation year of a
taxpayer (or in the case of a partnership, a fiscal period of the
partnership) or on application by the taxpayer or partnership on or before
that day, waive or cancel all or any portion of any penalty or interest
otherwise payable under this Act by the taxpayer or partnership in
respect of that taxation year or fiscal period, and notwithstanding
subsections 152(4) to (5), any assessment of the interest and penalties
payable by the taxpayer or partnership shall be made that is necessary to
take into account the cancellation of the penalty or interest. [emphasis
added]
|
220. (3.1) Le ministre peut, au plus tard
le jour qui suit de dix années civiles la fin de l’année d’imposition d’un contribuable
ou de l’exercice d’une société de personnes ou sur demande du contribuable ou
de la société de personnes faite au plus tard ce jour-là, renoncer à tout ou
partie d’un montant de pénalité ou d’intérêts payable par ailleurs par
le contribuable ou la société de personnes en application de la présente loi pour
cette année d’imposition ou cet exercice, ou l’annuler en tout ou en
partie. Malgré les paragraphes 152(4) à (5), le ministre établit les
cotisations voulues concernant les intérêts et pénalités payables par le
contribuable ou la société de personnes pour tenir compte de pareille annulation. [Non souligné dans
l’original.]
|
B. The basic
facts
[6]
On
December 6, 2005, at a time when Mr. Bozzer had tax debts that arose in his
1989 and 1990 taxation years, Mr. Bozzer applied to the Minister under
subsection 220(3.1) of the Act for a waiver of interest accrued on the tax
debt.
[7]
The
Minister denied the application for the following reasons:
As of January 1, 2005, the Agency’s
policy with regards to fairness requests was amended to exclude debts over 10
years of age from the date of submission. The ten years expired on December
31, 1999 for the 1989 taxation year and December 31, 2000 for the 1990 taxation
year. For this reason we are unable to consider your request for departmental
delay or error and have concluded it would not be appropriate to cancel or
waive the interest.
[8]
Mr.
Bozzer applied to the Minister for a second-level review. The Minister denied that
application as well, for the following reasons:
The above legislation [subsection
220(3.1)] is applicable because you applied for interest cancellation on
December 6, 2005. Therefore the Minister has no discretion under subsection
220(3.1) to waive or cancel any interest otherwise payable under the Act in
respect of your 1989 and 1990 taxation years. This is because it has been more
than ten calendar years since the ends of your 1989 and 1990 taxation years. In
addition, you applied after 2004, which is more than ten calendar years after
the ends of your 1989 and 1990 taxation years.
[9]
Mr.
Bozzer applied to the Federal Court for judicial review of the Minister’s
decision. The Federal Court judge dismissed the application, finding (at
paragraph 51 of his reasons for judgment) that “the time limit in subsection
220(3.1) of the ITA is for the ten calendar years after the relevant taxation
year, namely the year of assessment.” In my view, this interpretation cannot
stand, as the ten year period in subsection 220(3.1) of the Act does not start
in the year of assessment. Nowhere does subsection 220(3.1) mention the year of
assessment as a relevant consideration.
C. The parties’
competing interpretations of subsection 220(3.1) of the Act
and how they apply to the facts of this
case
[10]
Before
this Court, the parties presented competing interpretations of subsection
220(3.1) of the Act. These competing interpretations result in drastically
different results on the facts of this case.
[11]
The
parties’ competing interpretations of subsection 220(3.1) concern only a
portion of it and relate particularly to the phrase “interest payable in
respect of [a] taxation year” (« d’intérêts payable pour [une] année
d’miposition »):
220. (3.1) The Minister may, on or before
the day that is ten calendar years after the end of a taxation year of a
taxpayer…waive or cancel all or any portion of any …interest…payable…by
the taxpayer…in respect of that taxation year…. [emphasis added]
|
220. (3.1) Le ministre peut, au plus tard le jour qui suit de
dix années civiles la fin de l’année d’imposition d’un contribuable… renoncer
à tout ou partie d’un montant …d’intérêts payable…par le
contribuable…en application de la présente loi pour cette année
d’imposition… [Non
souligné dans l’original.]
|
(1) Mr. Bozzer’s interpretation
[12]
Mr. Bozzer submits that “interest…payable…in respect of [a]
taxation year” means any interest accrued in that taxation year on a tax debt.
On his view of the matter, subsection 220(3.1) permits the Minister to exercise
his discretion to cancel interest accrued in any taxation year ending within
ten years before the taxpayer’s application for relief, regardless of when the
underlying tax debt arose.
[13]
Under this interpretation, Mr. Bozzer analyzes the facts of this
case as follows. He had tax debts that arose in the 1989 and 1990 taxation
years. Interest accrued on those debts in every subsequent taxation year. On
December 6, 2005, he applied to the Minister for a cancellation of interest. On
his view of the matter, subsection 220(3.1) permits the Minister to cancel any
interest that accrued in the ten taxation years preceding his application, that
is, from January 1, 1995 to December 31, 2004. On this analysis, the fact that
the tax debt arose in 1989 and 1990 is irrelevant.
(2) The
Minister’s interpretation
[14]
The Minister disagrees. The Minister submits that
“interest…payable…in respect of [a] taxation year” means any interest accrued
on a tax debt that arose in that taxation year. Therefore, the Minister may
exercise his discretion to waive interest otherwise payable under the Act only
if a taxpayer applies within ten calendar years of the end of the taxation year
in which the underlying tax debt arose.
[15]
In Mr. Bozzer’s case, the underlying tax debt arose in 1989 and
1990. On the Minister’s view of the matter, Mr. Bozzer had to apply for a
waiver of interest on his 1989 tax debt by December 31, 1999 and his 1990 tax
debt by December 31, 2000.
[16]
Therefore, the Minister says that he has no statutory authority to
consider Mr. Bozzer’s application for a waiver of interest in this case. Mr.
Bozzer’s application was on December 6, 2005. On the Minister’s view of the
matter, that was nearly five years too late.
D. The proper approach to interpreting provisions in
taxation legislation
[17]
In
Canada Trustco Mortgage Co. v. Canada, [2005] 2 S.C.R. 601, 2005 SCC 54
at paragraph 10, the Supreme Court of Canada set out the proper approach for
interpreting taxation statutes:
The interpretation of a statutory provision must be made
according to a textual, contextual and purposive analysis to find a meaning
that is harmonious with the Act as a whole. When the words of a provision
are precise and unequivocal, the ordinary meaning of the words plays a dominant
role in the interpretive process. On the other hand, where the words can
support more than one reasonable meaning, the ordinary meaning of the words
plays a lesser role. The relative effects of ordinary meaning, context and
purpose on the interpretive process may vary, but in all cases the court must
seek to read the provisions of an Act as a harmonious whole.
The Supreme Court went on to observe (at
paragraph 13) that the Act “remains an instrument dominated by
explicit provisions dictating specific consequences, inviting a largely
textual interpretation.” But where the text is equivocal, “greater recourse to
the context and purpose of the Act may be necessary”: Placer Dome Canada
Ltd. v. Ontario (Minister of
Finance),
[2006] 1 S.C.R. 715 at paragraph 22.
E. The interpretation of the text
of subsection 220(3.1)
[18]
The
parties’ submissions on how the text of subsection 220(3.1) should be
interpreted, summarized above, persuade me that the text is ambiguous. The
words “interest…payable…in respect of a taxation year,” examined in isolation,
are conceivably capable of bearing either of the meanings suggested by the
parties.
[19]
As
part of its submissions on how the text of subsection 220(3.1) should be
interpreted, the Minister submits that an earlier
decision of this Court is directly on point: Montgomery v. M.N.R., 95
D.T.C. 5032; [1995] 1 C.T.C. 196.
[20]
In my view, Montgomery is
distinguishable. In Montgomery, this Court
did not interpret the text of subsection 220(3.1) that is in issue in this
appeal. Rather, this Court interpreted a transitional provision concerning
subsection 220(3.1): S.C. 1993, c. 24, subsection 127(5). That transitional
provision limited the application of subsection 220(3.1) to the “1985 and
subsequent taxation years.” This Court simply held (at paragraph 11) that the
Minister’s discretion was limited to the waiving of interest otherwise payable
under the Act for a taxation year that is either the 1985 taxation year or any
later taxation year. Montgomery offers no
guidance on the interpretation issue before us in this appeal.
[21]
Since the text in this case is equivocal, in accordance with Placer
Dome, supra at paragraph 22, it will be necessary for us to have
“greater recourse” to the purpose of subsection 220(3.1) and the context
surrounding it.
F. The purpose of subsection
220(3.1)
(1) What
is the purpose?
[22]
Subsection
220(3.1) is one of several taxpayer relief provisions in the Act. It was
introduced in 1991 as part of what was called a “fairness package.” The
Minister has explained the purpose behind these provisions as follows:
The legislation gives the CRA the ability to administer
the income tax system fairly and reasonably by helping taxpayers to resolve
issues that arise through no fault of their own, and to allow for a
common-sense approach in dealing with taxpayers who, because of personal
misfortune or circumstances beyond their control, could not comply with a
statutory requirement for income tax purposes.
|
La législation donne à l’ARC la
capacité d’administrer le régime de l’impôt sur le revenu de façon équitable
et raisonnable en aidant les contribuables à régler des problèmes qui se
présentent indépendamment de leur volonté et en permettant d’adopter une
approche axée sue le bon sens dans le cas de personnes qui, en raison de
problèmes personnels ou de circonstances indépendantes de leur volonté, n’ont
pas pu satisfaire à une exigence législative aux fins de l’impôt sur le
revenu.
|
See Information Circular 07-1,
“Taxpayer Relief Provisions,” May 31, 2007, at paragraph 8.
[23]
In law, the Information Circulars of the Canada Revenue Agency are
nothing more than administrative policy statements. They are not finally
determinative of the meaning of a provision of the Act.
[24]
However, in this case, the plain words of subsection 220(3.1)
support the description of purpose in the above passage, and there is nothing in
the history behind subsection 220(3.1) or in related sections that would cast
doubt on it. Indeed, in 2004 the Department of Finance confirmed it. It stated
that subsection 220(3.1) permits the Minister to waive or cancel interest or
penalties “in situations where factors beyond the taxpayer’s control, such as
illness or a natural disaster, prevented a tax return from being filed on
time”: Canada, Department of Finance, 2004 Budget, Budget Plan, March 23, 2004,
annex 9, at page 347.
[25]
Therefore, I am prepared to accept the description of purpose in
the above passage as the purpose that subsection 220(3.1) is meant to further.
(2) Testing
the parties’ competing interpretations against the purpose of subsection
220(3.1)
[26]
One method of testing the parties’ competing interpretations is to
imagine factual scenarios in which subsection 220(3.1) might be applied, apply
subsection 220(3.1) to those scenarios, examine the results, and then compare
those results with the purpose that subsection 220(3.1) is meant to further.
[27]
For this purpose, I shall examine two scenarios.
Scenario
A
[28]
Suppose that a taxpayer is obliged to remit income tax instalments
during taxation year X but fails to do so. He files his income tax return for
taxation year X on time, but fails to pay the resulting tax debt.
[29]
At some point in year X+1, the Minister assesses the tax payable
for taxation year X, with accrued interest, including interest on the unpaid
instalments for taxation year X. Later, the taxpayer decides to apply for a
cancellation of the interest accrued on the unpaid instalments for taxation
year X.
[30]
In this scenario, both the Minister’s interpretation of subsection
220(3.1) and Mr. Bozzer’s interpretation of subsection 220(3.1) will lead to
the conclusion that the taxpayer must submit his application within ten years
of the end of taxation year X.
Scenario
B
[31]
Suppose that this same taxpayer is about to file his income tax
return for taxation year X on time. As in scenario A, the taxpayer was obliged
to remit tax instalments during taxation year X but did not do so.
[32]
However, in January of taxation year X+1, just before preparing
the income tax return for taxation year X, the taxpayer is seriously injured in
a car accident. In taxation year X+11 – after going through a coma, enduring
many operations, recovering slowly, dealing with physical and mental
challenges, and going through years of rehabilitation and retraining – the
taxpayer finally gets around to filing his tax return for taxation year X.
[33]
In taxation year X+12, the Minister assesses the tax payable for taxation
year X, with accrued interest, including interest on the unpaid instalments for
taxation year X. Again, the taxpayer decides to apply for a cancellation of the
interest accrued on the unpaid instalments for taxation year X.
[34]
On the Minister’s interpretation of subsection 220(3.1), the
taxpayer would be barred from asking for any waiver of interest. The tax debt
on which interest accrued was eleven years ago, past the ten year limitation
period.
[35]
On Mr. Bozzer’s interpretation of subsection 220(3.1), the
taxpayer could apply for a waiver of interest that accrued during the ten
taxation years preceding his application.
Assessment of
the scenarios
[36]
Scenario B shows that the Minister’s interpretation of subsection
220(3.1) leads to a harsh result that is contrary to the purpose of subsection
220(3.1): to allow taxpayers to ask for relief against penalties and interest
and to allow the Minister to grant such relief where, in his view of the
overall fairness of the situation, it is appropriate to do so. In the words of
the Information Circular, subsection 220(3.1) is one of several that are
supposed to give the Minister an ability “to administer the income
tax system fairly and reasonably” by “helping taxpayers to resolve issues that
arise through no fault of their own.” In particular, according to the Information
Circular, this subsection is one of several designed “to allow for a
common-sense approach in dealing with taxpayers who, because of personal
misfortune or circumstances beyond their control, could not comply with a
statutory requirement for income tax purposes.”
[37]
Admittedly, scenario B will not be a commonly-occurring
circumstance. But it does show that the Minister’s interpretation can prevent
him from addressing, in a fair and reasonable way, taxpayers’ problems that
were caused by personal misfortune or circumstances during the statutory ten
year period that were beyond the taxpayers’ control, contrary to the purpose of
subsection 220(3.1).
[38]
As scenario B demonstrates, Mr. Bozzer’s interpretation is fairer
and, thus, more consistent with the purpose of subsection 220(3.1). Mr. Bozzer’s
interpretation gives the Minister a greater ability to address a taxpayer’s
misfortune or circumstances within the statutory ten year period that were
beyond the taxpayer’s control.
G. Subsection 220(3.1),
viewed contextually
(1) The
legislative history of subsection 220(3.1)
[39]
Before
2004, there was no ten year limitation period in subsection 220(3.1). At any
time, a taxpayer could ask the Minister to waive interest that accrued since
1985. The pre-2004 version of subsection 220(3.1) is as follows:
220. (3.1) The Minister
may at any time waive or cancel all or any portion of any penalty or interest
otherwise payable under this Act by the taxpayer or partnership and,
notwithstanding subsections 152(4) to (5), such assessment of the interest
and penalties payable by the taxpayer or partnership shall be made as is
necessary to take into account the cancellation of the penalty or interest.
|
220. (3.1) Le ministre peut, à tout moment, renoncer à tout ou
partie de quelque pénalité ou intérêt payable par ailleurs par un
contribuable ou une société de personnes en application de la présente loi,
ou l’annuler en tout ou en partie. Malgré les paragraphes 152(4) à (5), le
ministre établit les cotisations voulues concernant les intérêts et pénalités
payables par le contribuable ou la société de personnes pour tenir compte de
pareille annulation.
|
[40]
In
2004, subsection 220(3.1) was amended to include a ten year limitation period:
S.C. 2005, c. 19, subsections 48(1) and (2). This resulted in the version of
subsection 220(3.1) in issue in this case, which is reproduced here with the
amendment emphasized:
220. (3.1) The Minister may, on or
before the day that is ten calendar years after the end of a taxation year of
a taxpayer (or in the case of a partnership, a fiscal period of the
partnership) or on application by the taxpayer or partnership on or before
that day, waive or cancel all or any portion of any penalty or interest
otherwise payable under this Act by the taxpayer or partnership in
respect of that taxation year or fiscal period, and notwithstanding
subsections 152(4) to (5), any assessment of the interest and penalties
payable by the taxpayer or partnership shall be made that is necessary to
take into account the cancellation of the penalty or interest. [emphasis
added]
|
220. (3.1) Le ministre peut, au plus
tard le jour qui suit de dix années civiles la fin de l’année d’imposition d’un
contribuable ou de l’exercice d’une société de personnes ou sur demande du
contribuable ou de la société de personnes faite au plus tard ce jour-là,
renoncer à tout ou partie d’un montant de pénalité ou d’intérêts payable
par ailleurs par le contribuable ou la société de personnes en application de
la présente loi pour cette année d’imposition ou cet exercice, ou
l’annuler en tout ou en partie. Malgré les paragraphes 152(4) à (5), le
ministre établit les cotisations voulues concernant les intérêts et pénalités
payables par le contribuable ou la société de personnes pour tenir compte de
pareille annulation. [Non
souligné dans l’original.]
|
[41]
The
2004 amendment represents a restriction of a right previously enjoyed by the
taxpayer. In my view, in this particular situation, it was incumbent on
Parliament to be clear in its language imposing the restriction and any doubt
should be resolved in favour of the taxpayer. I note the following passage from
the judgment of Estey J. in Morguard Properties Ltd. v. City of Winnipeg,
[1983] 2 S.C.R. 493 at page 509:
…[T]he courts require that, in order to adversely affect a
citizen’s right, whether as a taxpayer or otherwise, the legislature must do so
expressly. Truncation of such rights may be legislatively unintended or even
accidental, but the courts must look for express language in the statute before
concluding that these rights have been reduced.
[42]
The
words chosen by Parliament are ambiguous. In my view, in this particular
situation, this ambiguity should be resolved in favour of the taxpayer.
(2) The
Minister’s Technical Notes
[43]
The
Minister submitted that certain Technical Notes published at the time of the
2004 amendment to subsection 220(3.1) are relevant to the interpretation of the
subsection. The Minister submitted that the Technical Notes reveal that the ten
year limitation period was introduced in 2004 because of a concern that
“administrative problems would arise if the Minister were required to verify
claims going back as far as 1985” (Minister’s memorandum of fact and law,
paragraph 44).
[44]
The
Minister says that if Mr. Bozzer’s interpretation is adopted, the Minister
might have to verify details relevant to any past taxation year, even years
before 1985, as long as the interest in question had accrued within the past
ten years.
[45]
I
do not accept this as a plausible explanation for the ten year limitation
period in the case of subsection 220(3.1).
[46]
It
might be an explanation for other provisions that were amended to include a ten
year limitation period. For example, a taxpayer might try to use subsection
152(4.2) to claim a deduction for a business expense incurred 15 years ago. In
that context, the addition of a ten year limitation period to that subsection
does eliminate “administrative problems.” Similarly, a taxpayer might try to
use subsection 220(3.2) to file an election that he or she should have filed 15
years ago. The election goes back so many years that one might anticipate
“administrative problems” for the Minister.
[47]
But
the ten year limitation period in subsection 220(3.1) is not needed to
eliminate “administrative problems.” Under subsection 220(3.1), both before and
after 2004, the Minister, in considering whether to grant relief, would only
have to know the amount of the original tax debt upon which interest accrued,
and what payments have been made and when. From there, the interest is
determined by a mathematical calculation. There is no evidence that this poses
an “administrative problem,” and the record discloses no basis upon which the
existence of any such problem can be inferred.
[48]
I
would also note that, based on Montgomery, supra the Minister can
never be obliged to look to years prior to 1985 when considering an application
under subsection 220(3.1).
(3) The
Minister’s Voluntary Disclosures Program
[49]
Mr.
Bozzer pointed to the Minister’s Voluntary Disclosures Program as another
reason why its interpretation should be accepted by this Court.
[50]
The
Voluntary Disclosures Program is a policy (Information Circular IC00-1R2)
of the Canada Revenue Agency, not law. Under this policy, taxpayers can make
disclosures to correct inaccurate or incomplete information, or to disclose
information not previously reported. If the Canada Revenue Agency accepts a
taxpayer’s disclosure as having met the terms of the policy, it will not charge
the taxpayer penalties or prosecute the taxpayer regarding the matters
disclosed.
[51]
Mr.
Bozzer submits that the Minister’s statutory authority to relieve the taxpayer
of penalties in such a case is found in subsection 220(3.1) of the Act, and
nowhere else. Then
he points
to paragraph 13 of the policy, which describes exactly what penalties can be
waived under this policy:
[13] For income tax submissions made on or after
January 1, 2005, the Minister’s ability to grant relief is limited to any
taxation year in which the submission is filed. For example: in an income tax
submission made on May 1, 2007, the limitation would apply so that relief would
only be available for the 1997 and subsequent taxation years.
Mr. Bozzer notes that this is consistent
with his interpretation and not the Minister’s interpretation of subsection
220(3.1).
[52]
But
policy statements are not determinative of what statutory provisions mean in
law. I do not consider Mr. Bozzer’s submissions on the Voluntary Disclosures
Program to be helpful on the legal issue of how subsection 220(3.1) of the Act
is properly interpreted.
(4) Parliament’s ability to draft
sections in the Act that achieve the effects it wants
[53]
The
Minister would like subsection 220(3.1) to have a forward looking effect, so
that the ten year period runs forward from the year in which the tax debt
occurred.
[54]
As
I have stated above, subsection 220(3.1) does not use language that clearly
suggests that it should have a forward looking effect.
[55]
But
Parliament certainly knows how to draft sections that have a forward looking
effect. For example, Parliament has drafted another subsection in section 220,
namely subsection 220(3.201), using language that clearly causes a “forward
looking effect”:
220. (3.201) On application by a taxpayer,
the Minister may extend the time for making an election, or grant permission
to amend or revoke an election, under section 60.03 if
(a)
the application is made on or before the day that is three calendar years after
the taxpayer’s filing-due date for the taxation year to which the election
applies; and
(b)
the taxpayer is resident in Canada
(i) if the taxpayer is deceased
at the time of the application, at the time that is immediately before the
taxpayer’s death, or
(ii) in any other case, at the
time of the application.
|
220. (3.201) Sur demande d’un contribuable, le ministre peut
proroger le délai pour faire le choix prévu à l’article 60.03, ou permettre
que ce choix soit modifié ou annulé, si les conditions suivantes sont
réunies :
a) la demande est présentée au plus tard
le jour qui suit de trois années civiles la date d’échéance de production qui
est applicable au contribuable pour l’année d’imposition visée par le choix;
b) le contribuable réside au Canada à
celui des moments suivants qui est applicable :
(i) s’il est décédé au moment de la demande, le moment
immédiatement avant son décès,
(ii) sinon, le moment de la
demande.
|
[56]
If
Parliament meant subsection 220(3.1) to have a forward looking effect, it
certainly knew how to draft it. It did not do so. This is another consideration
in support of Mr. Bozzer’s interpretation of the subsection.
(5) Effects
on other sections of the Act or the administration of the Act
[57]
If
this Court were to adopt Mr. Bozzer’s interpretation of subsection 220(3.1),
would there be an unintended or unwelcome effect on other sections in the Act
or in the administration of the Act? If there were, that might be a clue as to
Parliament’s intentions concerning subsection 220(3.1). However, in his written
or oral submissions, the Minister did not identify any such effects.
H. Conclusion
[58]
For
the foregoing reasons, I agree with Mr. Bozzer’s interpretation of subsection
220(3.1) of the Act.
[59]
Accordingly, the Minister has the statutory authority to cancel interest
on Mr. Bozzer’s 1989 and 1990 tax debts, to the extent that it accrued during
the ten taxation years preceding his application to the Minister for interest
relief under subsection
220(3.1) of the Act. Mr. Bozzer’s application was made
on December 6, 2005.
[60]
Therefore, on the facts of this case, the interest that is the
subject of Mr. Bozzer’s application is the interest accrued under the Act from
January 1, 1995 to December 31, 2004.
I. Proposed
disposition
[61]
Therefore, I would allow the appeal, set aside the judgment of the
Federal Court, allow Mr. Bozzer’s application for judicial review, and refer
his application for interest relief back to the Minister for reconsideration in
accordance with these reasons, all with costs to Mr. Bozzer both in this Court and
in the Federal Court.
“David
Stratas”
“I
agree
K. Sharlow J.A.”
“I
agree
Johanne Trudel J.A.”