Docket: T-1363-13
Citation:
2014 FC 452
Montréal, Quebec, May 12, 2014
PRESENT: Richard Morneau, Esq., Prothonotary
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BETWEEN:
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COLASCANADA INC.
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Applicant
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and
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MINISTER OF NATIONAL REVENUE (AS REPRESENTED BY THE CANADA REVENUE AGENCY)
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
This is a motion by the Minister of National
Revenue (Minister) to, in essence, obtain from this Court an order striking out
the notice of application for judicial review filed by the applicant
(ColasCanada) on August 12, 2013 (notice of application or application).
[2]
In his notice of motion dated September 13,
2013, the Minister, referring to expressions found in Rule 221 of the Federal
Courts Rules (Rules) and in David Bull Laboratories (Canada) Inc.
v Pharmacia Inc. (CA), [1995] 1 FC 588 at page 600 (Pharmacia),
raises that the application is “bereft of any possibility of success” (Pharmacia,
page 600) and that it is also “an abuse of the process” (paragraph 221(1)(f)
of the Rules).
[3]
Subsequently, on October 24, 2013, the
Federal Court of Appeal rendered a leading case in Minister of National
Revenue v JP Morgan Asset Management (Canada) Inc.,
2013 FCA 250 (JP Morgan).
[4]
It is on the principles in that decision, which
incorporates the test set out in Pharmacia at page 600 regarding
motions to strike with respect to judicial review, that the Minister, in his
written submissions dated February 7, 2014, focuses most of his attack (that is
a more appropriate approach because Rule 221 applies only to the striking out
of an action and not of an application for judicial review).
[5]
Contrary to the view of ColasCanada, it does not
appear to me that the Minister was wrong in referring largely to the principles
set out in JP Morgan, even if the application in this case concerns
a situation that takes place before the issuance of the assessments contrary to
the case in JP Morgan.
[6]
In fact, in JP Morgan, it is
appropriate to consider that the Federal Court of Appeal takes the opportunity,
beyond the facts in that case, to review the circumstances that justify this
Court granting a motion to strike out an application for judicial review, a
holistic and practical reading of which demonstrates that the essential nature
of such an application deals with a subject that falls within the exclusive
jurisdiction of the Tax Court of Canada (TCC).
[7]
The reason the Court took that approach in JP Morgan
was because it sought to redirect, even hold back applications for judicial
review that erroneously appear before this Court in the area of tax. In that
regard, at paragraph 29 of its decision, the Federal Court of Appeal asked
the following question:
[29] Time and
time again, this Court strikes out taxpayers’ applications for judicial review.
What explains the flow of unmeritorious applications for judicial review in the
area of tax?
[8]
Justice Stratas asked the question at the very
beginning of the analysis. To try to respond to that and in order to define the
parameters of the rest of his analysis intended to provide general guidance (see
paragraph 37 of that decision), at the outset he reports a misinterpretation
and misuse by various parties of the Supreme Court of Canada’s comments in Canada
v Addison & Leyen Ltd., [2007] 2 SCR 793 (Addison
& Leyen) where, in paragraph 8 of the decision, the Supreme
Court of Canada indicated that, in certain circumstances, judicial review is
available in the area of tax. In that respect, the Federal Court of Appeal
stated the following at paragraph 31 in JP Morgan:
[31] In legal submissions, commentaries
and conferences, some tax counsel have viewed the Supreme Court’s words in Addison
& Leyen in isolation, divorced from administrative law principles.
To them, the Supreme Court’s words welcome taxpayers, albeit cautiously,
to seek refuge in the Federal Court from the Minister’s harsh or unfair
treatment. Taxpayers also see cases that, on occasion, provide redress for
“unfairness,” “unreasonableness” and “abuses of discretion” – colloquially
understood, more words of welcome. On this optimistic basis, some launch
applications for judicial review. However, such a hopeful interpretation of Addison
& Leyen is based on a lack of awareness or misunderstanding of
administrative law principles.
[Emphasis added.]
[9]
In the next paragraph of JP Morgan,
not surprised by a high failure rate for applications for judicial review in
the area of tax, the Federal Court of Appeal referred further and as follows to
harsh comments in doctrine, comments that touch the factual background
underlying the application:
[32] Almost always, applications for
judicial review of administrative actions by the Minister in connection with
assessments fail, especially in this Court. The failure rate now has led some
to conclude that the judiciary “is simply not fulfilling” the responsibility of
“controlling, through administrative law procedures, the [Minister’s] exercise
of government powers and… protecting common citizens from abuses” in the
exercise of tax audit and assessment powers: Guy Du Pont and Michael H.
Lubetsky, “The Power to Audit is the Power to Destroy: Judicial Supervision of
the Exercise of Audit Powers” (2013), 61 Can. Tax J. 103 at
page 120.
[10]
Subsequently, and in order to properly make its
point, the Court again stated the following at paragraphs 49 and 50 of its
decision; the statements are inspired by, among other things, another leading
case by the same Court, that is, Canada v Roitman,
2006 FCA 266 (Roitman):
[49] Armed with sophisticated
wordsmithing tools and cunning minds, skilful pleaders can make Tax Court
matters sound like administrative law matters when they are nothing of the
sort. When those pleaders illegitimately succeed, they frustrate Parliament’s
intention to have the Tax Court exclusively decide Tax Court matters.
Therefore, in considering a motion to strike, the Court must read the notice of
application with a view to understanding the real essence of the application.
[50] The Court must gain “a realistic appreciation” of the application’s “essential
character” by reading it holistically and practically without fastening onto
matters of form: Canada v. Domtar Inc., 2009 FCA 218 at
paragraph 28; Canada v. Roitman, 2006 FCA 266 at
paragraph 16; Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62,
[2010] 3 S.C.R. 585 at paragraph 78.
[11]
Even though the Federal Court of Appeal in JP Morgan
recognized at paragraphs 83 and 89 situations that would amount to
reprehensible conduct by the Minister in the context of the assessment process
and that would cause such situations to be outside the reach of the exclusive
jurisdiction of the TCC, the Federal Court of Appeal nevertheless previously at
paragraph 66 of its decision established three situations where this Court
must strike out an application for judicial review (situations warranting
striking). That paragraph and the preceding heading read as follows:
E. General principles governing when notices of application
for judicial review in tax matters should be struck
[66] Administrative
law authorities from this Court and the Supreme Court of Canada – including the
Supreme Court’s decision in Addison & Leyen, supra –
show that any of the following qualifies as an obvious, fatal flaw warranting
the striking out of a notice of application:
(1) the
notice of application fails to state a cognizable administrative law claim
which can be brought in the Federal Court;
(2) the Federal Court is not able to
deal with the administrative law claim by virtue of section 18.5 of the Federal
Courts Act or some other legal principle; or
(3) the Federal Court cannot grant
the relief sought.
. . .
The
underlying factual background
[12]
Essentially, the application was filed on
August 12, 2013, after the Minister, in the context of an audit of
ColasCanada, sent ColasCanada draft assessments under cover of a letter dated
July 12, 2013. Moreover, the Court finds that paragraphs 3
to 6 and the corresponding footnotes in the Minister’s written submissions
dated February 7, 2014 (Minister’s written submissions) adequately reflect the
factual situation to consider for future analysis:
3. For the
purposes of this motion only, the facts alleged in ColasCanada’s notice of
application are presumed to be true. Insofar as they are relevant, the facts
are as follows:
a) ColasCanada
Inc. is a Canadian resident corporation incorporated under the Canada
Business Corporations Act, which acts as a holding corporation.
b)
ColasCanada holds the shares of all the Canadian
operating corporations of the Colas group, headed by Colas S.A., a French
public corporation.
c)
The business of the Canadian operating
corporations is road construction and the sale of related products.
d)
Colas S.A. provides technical assistance to its
subsidiaries in connection with, inter alia, intellectual property,
scientific research and development, legal, insurance, financial, audit,
information technology, human resources, continuing education, equipment,
communications, purchasing and environmental issues.
e)
ColasCanada pays a fee to Colas S.A.,
purportedly in respect of those services.
f)
In 2010, the Minister of National Revenue
commenced an audit of ColasCanada’s 2004 to 2007 taxation years.
g)
On July 12, 2013, in the course of a
meeting held with representatives of ColasCanada, the Minister provided
ColasCanada with draft assessments in respect of its 2005 to 2007 taxation
years.1
h)
In the draft assessments, the Minister proposed
to disallow deductions claimed in respect of the technical assistance fees,
assess Part XIII tax on payments made to Colas S.A. and apply transfer
pricing penalties pursuant to subsection 247(3) of the Income tax Act.2
4. In its
notice of application, ColasCanada seeks judicial review in respect of the
“Decision” of the Minister to proceed with the issuance of certain notices of
reassessments (…)”3, which “Decision” was communicated to
ColasCanada “through the issuance of updated Draft Assessments dated
July 12, 2013 (…)”.4
5. ColasCanada
raises issues which relate to the “abusive exercise by the CRA of its assessing
powers”5 and notions of procedural fairness, arguing mainly that the
abundant documentation provided by ColasCanada in support of its position did
not receive proper consideration by the Minister6 and that the
Minister “proposed various arbitrary grounds of reassessment of the Applicant
and its affiliates”.7
6. ColasCanada
also raises issues of financial hardship in relation to the immediate payment
of 50% of any amounts assessed by the Minister, pursuant to
subsection 225.1(7) and (8) of the Act, if the notices of
assessments are issued in conformity of the draft assessments.8
1 The draft assessments for the taxation years ending
December 31, 2005, 2006 and 2007 are found at Exhibit 1 to the
Affidavit of Wei-Min Hum dated September 13, 2013, p. 7 of
Respondent’s motion record.
2 RSC 1985 c 1 (5th supp.).
3 Notice of application at par. 1.
4 Notice of application at par. 1 and 3(aa).
5 Notice of application at par. 3(a) and par. 3(dd).
6 Notice of application at par. 3(a), 3(b), 3(v), 3(y),
3(bb), 3(pp) to 3(mm).
7 Notice of application at par. 3(a) and 3(b).
8 Notice of application at par. 3(c) and 3(nn).
[13]
The actual paragraphs in the notice of
application that essentially support the above factual background and that the
Court is particularly mindful of read as follows:
1. This is
an Application for judicial review and an appropriate Order or Orders in
respect of the decision of the Minister of National Revenue (the “Minister”)
and the Canada Revenue Agency (collectively with the Minister, the “CRA”), to
proceed with the issuance of certain notices of reassessment, which decision
was communicated to the Applicant during a meeting held on July 12, 2013
(the “Decision”), drafts of which were provided to the Applicant in a letter
dated July 12, 2013. The draft assessments were proposed to be issued
under the Income Tax Act (Canada) (the “ITA”) to ColasCanada Inc.
(“ColasCanada”) in respect of its 2005 to 2007 taxation years (the
“Draft Assessments”).
. . .
3.
The grounds for the Application are:
Introduction
(a)
This Notice of Application relates to the
abusive exercise by the CRA of its assessing powers in connection with an audit
of ColasCanada, in the course of which (i) relevant information provided
to the CRA by the Applicant in support of its position has been deliberately
ignored by the CRA and (ii) the CRA has proposed various arbitrary
grounds of reassessment of the Applicant and its affiliates;
(b)
As will be demonstrated in the next paragraphs,
(i) it would have been impossible to reach the Decision in good faith had
the information provided to the CRA as part of the audit been properly and
impartially reviewed and taken into account in the decisional process
and (ii) the CRA’s approach to the audit of ColasCanada has been to
seek to maximize the amount of the reassessment even in the absence of legal
grounds;
. . .
The CRA’s Decision to Reissue Identical Draft Assessments
(aa) on
July 12, 2013, in the course of a meeting with representatives of the
Applicant scheduled at the request of the CRA, the CRA communicated the
Decision (and its intention to proceed with the issuance of assessments in
accordance with the Decision) through the issuance of updated Draft Assessments
dated July 12, 2013 to ColasCanada, maintaining its position
that (i) no deduction is available to ColasCanada in respect of the
Technical Assistance Fees (per the CRA’s previously asserted stance), and (ii) ColasCanada
should be assessed Part XIII tax on payments made to Colas S.A., and
further determining that (iii) ColasCanada should be liable for
transfer pricing penalties pursuant to subsection 247(3) of the ITA,
irrespective of the fact that ColasCanada provided the CRA with the required
contemporaneous documentation within the prescribed period.
[14]
Given this context, ColasCanada is primarily
seeking the following remedies in its notice of application:
2. The
Applicant makes application for:
(a) an Order
that the Decision, together with any subsequent and consequent actions taken in
furtherance of the Decision, constitute an invalid and unlawful abuse and
exercise of a statutory power under subsection 152(4) (unless otherwise
indicated, all statutory references are to the ITA), which was exercised for an
improper purpose, such that the Applicant is entitled to an order setting aside
the Draft Assessments and protecting it from the Decision materializing into
actual assessments;
(b) an Order
in the nature of Prohibition that no action or proceeding be taken to collect
any taxes and interest which might be assessed in consequence of proceeding as
contemplated in the Decision regarding the Draft Assessments;
(c)
in the alternative, an Order in the nature of Certiorari
quashing the Decision;
. . .
Analysis
[15]
After consideration, and for the following
reasons, I have come to the conclusion that the notice of application based on
its essential nature falls clearly within the three situations warranting
striking if the notice of application is approached in a holistic and practical
manner.
[16]
The notice of application, in paragraph 1
specifically, with skill and in the same way as was criticized at the beginning
of paragraph 49 of JP Morgan, mentions a decision by the
Minister dated July 12, 2013, and not a notice of assessment outright.
[17]
However, the heart of this decision is the
communication of draft assessments to ColasCanada.
[18]
It is undeniable that the combined effect of
paragraph 1 and paragraph 2(a) of the notice of application is in reality and
in practice to immediately challenge the said draft assessments to request that
they be set aside so that they do not materialize into actual assessments.
[19]
The Minister correctly pointed out the following
at paragraphs 2 and 13 of his written submissions by referring to,
among other things, paragraphs 2(a) to (c) of the notice of
application where ColasCanada’s remedies are identified:
2. . . .
The result ColasCanada wishes to achieve in the application at bar – an order
setting aside the draft assessments and protecting it from the decision
materializing into actual assessments – assumes that the proposed reassessments
would be incorrect, a matter which is at the heart of the Tax Court’s
jurisdiction. Finally, the relief being sought, which in effect is to preclude
the Minister from issuing assessments, is a remedy the Federal Court cannot
grant. . . .
13. . . .
ColasCanada frames its notice of application as judicial review of the
“decision . . . to proceed with the issuance of certain notices of
reassessment”18 while its “essential character”19 is a
pre-emptive attack on the eventual reassessments themselves. The real nature of
ColasCanada’s claim is revealed by the relief that it is seeking which relates
directly to the eventual assessments themselves. . . .
[Footnotes
omitted.]
[20]
In addition, the remedies sought by ColasCanada,
even if they did not at that time address formal and already issued notices of
assessment, as is often the case in other situations, nevertheless amount to a
scenario criticized by the Supreme Court of Canada in Addison
& Leyen, paragraph 11.
[21]
At that paragraph 11, which is cited in JP Morgan
at paragraphs 81 and 85, the Supreme Court takes issue as follows
with the development of an incidental litigation system that would threaten the
exclusive jurisdiction of the TCC:
The integrity and efficacy of the system of
tax assessments and appeals should be preserved. Parliament has set up a
complex structure to deal with a multitude of tax-related claims and this
structure relies on an independent and specialized court, the Tax Court of
Canada. Judicial review should not be used to develop a new form of incidental
litigation designed to circumvent the system of tax appeals established by
Parliament and the jurisdiction of the Tax Court. Judicial review should remain
a remedy of last resort in this context.
[22]
This remains relevant even if, as previously
noted, ColasCanada is challenging draft assessments and not formally issued
assessments. In that regard, of course, theoretically, the objection and appeal
regime under the Act is still not open or available and section 18.5 of the Federal
Courts Act, RSC 1985, c F‑7, as amended, therefore cannot
in theory be raised to preclude the notice of application.
[23]
However, and as asked in JP Morgan
at paragraph 83 in fine, does this mean that the taxpayer can
proceed to Federal Court?
[24]
As set out in JP Morgan, the answer
to this question is no because later, if and when draft assessments materialize
into actual assessments, the TCC’s objection and appeal regime will come into
play. Here, the text in paragraphs 84 and 86 of JP Morgan
is key:
[84] . . . A judicial review brought in
the face of adequate, effective recourse elsewhere or at another time
cannot be entertained . . .
[86] Administrative law cases and
textbooks express this principle in many different ways: adequate alternative
forum, the doctrine of exhaustion, the doctrine against fragmentation or
bifurcation of proceedings, the rule against interlocutory judicial reviews and
the rule against premature judicial reviews. They all address the same
idea: someone has rushed off to a judicial review court when adequate,
effective recourse exists elsewhere or at another time.
[Emphasis added.]
[See also paragraph [91], first item, of
the same decision.]
[25]
Moreover, ColasCanada in its reply record to the
motion under review and during its oral submissions sought to describe the
Minister’s alleged abuse more particularly; that is, the fact that the auditor
in charge of the file apparently deliberately and in bad faith disregarded a
lot of relevant information provided to the said auditor and to his team by
ColasCanada in past months and years.
[26]
As specified in paragraph 74 of JP Morgan,
the taking into account of irrelevant considerations or the failure to take
into account relevant considerations are not elements that are grounds for
judicial review in this Court:
[74] At one time, the taking into
account of irrelevant considerations and the failure to take into account
relevant considerations were nominate grounds of review – if they happened, an
abuse of discretion automatically was present. However, over time, calls arose
for decision-makers to be given some leeway to determine whether or not a
consideration is relevant: see, e.g., Baker, supra at paragraph 55;
Dr. Q. v. College of Physicians and Surgeons of British Columbia,
2003 SCC 19, [2003] 1 S.C.R. 226 at paragraph 24.
Today, the evolution is complete: courts must defer to decision-makers’
interpretations of statutes they commonly use, including a decision-maker’s
assessment of what is relevant or irrelevant under those statutes: Dunsmuir,
supra at paragraph 54; Alberta Teachers’ Association, supra
at paragraph 34. Accordingly, the current view is that these are not
nominate categories of review, but rather matters falling for consideration
under Dunsmuir reasonableness review: see Antrim Truck Centre Ltd. v.
Ontario (Transportation), 2013 SCC 13 at paragraphs 53‑54.
[27]
Furthermore, and similarly, the Federal Court of
Appeal excluded, in paragraph 82 at page 36 in JP Morgan as
follows, the possibility of judicial review in Federal Court when the Minister
is criticized for ignoring or disregarding evidence:
[82] In each of the following
situations, an appeal to the Tax Court is available, adequate and effective in
giving the taxpayer the relief sought, and so judicial review to the Federal
Court is not available:
. . .
•
Inadequate procedures
followed by the Minister in making the assessment. Procedural defects committed by the
Minister in making the assessment are not, themselves, grounds for setting
aside the assessment: Main Rehabilitation Co v Canada, 2004 FCA 403 at paragraph 7; Webster, supra at paragraph 20; Queen
v. The Consumers’ Gas Company Ltd., [1987] 2 F.C. 60 at
page 67 (C.A.). To the extent the Minister
ignored, disregarded, suppressed or
misapprehended evidence, an appeal under the General Procedure in the Tax Court
is an adequate, curative remedy. In the Tax Court appeal, the
parties will have the opportunity to discover and present documentary and oral
evidence, and make submissions. Procedural rights available later can cure
earlier procedural defects: Posluns v. Toronto Stock
Exchange, [1968] S.C.R. 330; King v. University of Saskatchewan,
[1969] S.C.R. 678 at page 689; Taiga Works Wilderness Equipment
Ltd. v. British Columbia (Director of Employment Standards), 2010
BCCA 97 at paragraph 28; Histed v. Law Society of Manitoba,
2006 MBCA 89, 274 D.L.R. (4th) 326; McNamara
v. Ontario (Racing Commission) (1998), 164 D.L.R. (4th) 99,
111 O.A.C. 375 (C.A.).
[Emphasis added.]
[28]
On the same aspect, I think that the above-noted
paragraphs 74 and 82 of JP Morgan must lead us to
disregard the safeguard mechanisms that ColasCanada says in substance and in
reality (and therefore beyond the wording of paragraph 3 of the
application) are sought by the said application; that is, that by mandamus the
Court essentially orders the audit division under the Minister to do its
homework according to the assessment and conception of ColasCanada. At
paragraph 42 (see also paragraphs 57 and 58 of the same
submissions) ColasCanada stated the following:
42. . . . the Applicant does not wish
to prevent the Respondent from issuing any reassessments for the taxation years
in respect of a specific issue. The Applicant is, rather, seeking to have the
Court put in place safeguard mechanisms that will force CRA to carry out its
audit and eventual reassessments in accordance with procedural fairness.
Whether the Order issued by the court is ultimately a mandamus, a certiorari,
a prohibition order or some specially designed Order appropriate in the
circumstances is of no importance. The Appellant wants the contemplated draft
reassessments to be set aside and sent back for reconsideration until the
completion of an audit during which the CRA (i) will review the evidence
provided to it and (ii) will decide which Canadian entity of the Colas
group pays technical assistance fees to Colas S.A.
[29]
Furthermore, I think it should be remembered
that granting such a remedy would allow ColasCanada to control when an audit
file is in fact ready and might result in a notice of assessment. The
efficiency and effectiveness of the tax regime cannot contemplate such an
approach.
[30]
Finally, to the extent that the alleged
reprehensible conduct of the auditor, and in turn the Minister, does not fall
under the above-mentioned principles in JP Morgan, it is necessary
to consider that judicial review would not be the appropriate recourse, but
that that abuse or reprehensible conduct would come under, for its control or
sanction, an action and not an application for judicial review. At
paragraph 89 in JP Morgan, the Federal Court of Appeal stated
the following:
[89] In the tax
context, to the extent that the Minister has engaged in reprehensible
conduct that is beyond the reach of the Tax Court’s powers, adequate and
effective recourses may be available by means other than an application
for judicial review in the Federal Court: Tele-Mobile, supra;
Ereiser, supra at paragraph 38. For example, breaches of
agreements, careless, malicious or fraudulent actions, inexcusable delay, and
abuses of process may be redressed by way of actions for breach of
contract, regulatory negligence, negligent misrepresentation, fraud, abuse of
process, or misfeasance in public office: in the tax context see, e.g., Swift
v. The Queen, 2004 FCA 316; Leroux v. Canada Revenue
Agency, 2012 BCCA 63 at paragraph 22; Gardner
v. Canada (Attorney General), 2012 ONSC 1837, rev’d on
another point 2013 ONCA 423; McCreight v. Canada (Attorney
General), 2013 ONCA 483. Whether these actually constitute
adequate, effective recourses depends upon the circumstances of the particular
case.
[Emphasis added.]
[31]
ColasCanada also noted that the Federal Court
had to uphold its application because without the Court’s intervention at this
stage, ColasCanada would suffer irreparable harm by the fact that the future
assessments would require that it immediately pay 50% of the amounts
assessed even before the validity of the said assessments was reviewed in the
TCC.
[32]
For the following reasons argued by the Minister
in his written submissions, this argument does not stand:
53. ColasCanada
alleges that if the proposed assessments are issued, “irreparable harm will
result for the Applicant from the CRA’s process, even when the CRA’s manifestly
incorrect and abusive assessment action is ultimately proved wrong”. This
alleged harm would occur as a result of collection action taken by the Minister
after the issuance of the proposed reassessments. Indeed, as a result of
subsections 225.1(7) and (8) of the Act, the Minister may
collect 50% of the amounts assessed to ColasCanada 90 days after issuing
the notices of reassessment.
54. However,
subsection 220(4) of the Act provides for other effective recourse
against the immediate collection of these amounts by the Minister. Pursuant to
subsection 220(4) of the Act, the Minister may, if she considers it
advisable in a particular case, accept security for payment of any amount that
is or may become payable under the Act.
55. It is
premature at this time to anticipate the Minister’s eventual decision on an
eventual subsection 220(4) request from ColasCanada. But if the Minister
did refuse to accept security for payment of 50% of the amounts that would
be assessed, despite any financial hardship from immediate collection that
ColasCanada might allege, the Minister’s decision would be properly reviewable
by this Court on administrative law principles. [75]
56.
As a result, ColasCanada’s application in this
respect is premature.
[Footnotes omitted.]
[33]
Moreover, ColasCanada raised that there was a
need to follow the teachings in, inter alia, the decisions rendered in
March 2013 then on appeal on September 26, 2013, in Sifto Canada Corp.
v Minister of National Revenue, the respective references of which are
2013 FC 214 and 2013 FC 986 (collectively, Sifto
Canada). Note that the latter decision was appealed on October 4,
2013, docket A‑341‑13.
[34]
I do not believe that that is the approach to
take here.
[35]
First, contrary to ColasCanada’s assertion, the
Court accepts from its reading of those decisions that in that latter case
notices of assessment had been issued, which is unlike this case, a situation
preceding the issuance of notices of assessment (although that situation is not
central following my assessment). Furthermore, the ratio of those decisions
concerns the appropriateness of an application for judicial review that raises
a breach of undertaking by the Minister. The factual situation is therefore
very different from the situation before us.
[36]
Second, the Federal Court in Sifto Canada
relied on, inter alia, the initial decision rendered in the JP Morgan
file, a decision that was revised by the Federal Court of Appeal in its
decision dated October 24, 2013, in JP Morgan. Furthermore, that
decision by the Federal Court of Appeal reviewed, re-discussed and re-focused
several of those decisions that appear to support Sifto Canada.
[37]
Thus, the Court finds that the above-mentioned
reasons clearly establish that the notice of application falls under the three
situations warranting striking set out in JP Morgan.
[38]
To round out these ideas, it is appropriate to
cite the statements in paragraphs 100 and 101 of the same decision:
[100] Therefore, for taxpayers and their
counsel, the question is not whether their clients’ rights can be fully
vindicated. They can. The question is how to do it consistent with proper
practices and procedures, when to do it, in what forum, and by what means.
[101] For some, judicial review in the
Federal Court is a preferred tool of first resort. They are wrong. It is a tool
of last resort, available only when a cognizable administrative law claim
exists, all other routes of redress now or later are foreclosed, ineffective or
inadequate, and the Federal Court has the power to grant the relief sought.
[39]
Consequently, the respondent’s motion to strike
the notice of application will be allowed in the order, with costs.
[40]
Moreover, the respondent filed, on January 13,
2014, a motion to strike directed, that time, against the affidavit of
Jean-Yves Llenas dated December 23, 2013 (affidavit of Llenas).
[41]
Given that at the hearing of the motion,
ColasCanada indicated that it consented in general to the motion, that motion
will be allowed, without costs.
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