AG as respondent (p. 42:4)
The proper name of the respondent on an application for judicial review of a taxpayer relief decision under subsection 220(3.1) is "Attorney General of Canada". Rule 303 of the Federal Courts Rules provides that when there are no persons that can be named that are directly affected by the order sought in the application, the applicant shall name the Attorney General of Canada as a respondent. ...
Request for certified tribunal record (p.42:4)
At the time of filing the notice of application or at a later time, an applicant may make a request pursuant to rule 317 for material relevant to the application that is in the possession of the CRA and not in the possession of the applicant. The request must identify the material requested. This request is often referred to as a request for the certified tribunal record. The certified tribunal record is not to be confused with the application record, which is filed later in the proceedings. The application record is a record that each party must prepare after all of the affidavit material is completed and any cross-examination on affidavits has occurred. The application record includes the party's factum and authorities.
...The courts have confirmed that it is not only the decision letter itself but the entirety of the documentary record that was before the decision maker that is to be examined in the judicial review of a taxpayer relief decision. The Crown's affidavit will set out that documentary record….
Electronic filing (p.42:5)
Recent amendments to the rules have made the judicial review process less paper-intensive. For example, the Federal Court now allows for electronic service and filing of documents. At the time of writing, rule 71 has not yet been amended to include reference to a document being sent to the registry by electronic transmission. However, the Federal Court issued a notice to parties and the legal profession on February 26, 2013 which allows for the electronic service of documents and also, via an e-filing application on the Federal Court website, the electronic filing of documents directly to the court. ...
Filing with application records (p. 42:5)
Another example of a paper-saving measure is found in rules 306 and 307, recently amended so that the parties no longer have to file their supporting affidavits and documentary exhibits prior to filing their application records. The parties only have to provide proof of service of those documents, whereupon the documents are deemed to be filed. ...
Double-sided documents (other than authorities) rejected (p. 42:5)
...A double-sided document may not be accepted for filing in the registry, necessitating that the document be prepared again in the proper format. This step can cost valuable time when deadlines are drawing near.
Group or representative proceedings (pp. 42:9-10)
...In situations where the minister issues a decision or decisions that apply to all members of a group of taxpayers and those taxpayers seek judicial review of the minister's decision or decisions, the Federal Courts Rules offer two options. Rule 102 permits applicants to join in one proceeding where they are represented by the same counsel and the relief claimed arises from substantially the same facts or raises a common question of fact or law. Alternatively, rule 114 permits one application to proceed as a representative proceeding. Like rule 102, rule 114 is applicable only when there are common issues of law and fact.
General reasonableness standard (p. 42:6-7)
In general, the standard of review that the reviewing court will apply to the minister's decision on an application for taxpayer relief is reasonableness. The reviewing court can only interfere if the minister reached an outcome that is indefensible and unacceptable on the facts and the law. [fn 14: Telfer..., 2009 FCA 23 at paras 24-28...; Slau...2009 FCA 270 at para 27...; Dunsmuir v New Brunswick, 2008 SCC 9 at para 47... .] In the language of Dunsmuir, a court must examine the decision-making process, including the reasons for the decision, and determine whether the decision is justified, transparent, and intelligible and within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law.
Exceptions for correctness standard (pp. 42:7-8)
...Dunsmuir confirmed that the application of a correctness standard of review is limited to jurisdictional and some other questions of law. In situations where there is a question of law that is of "central importance to the legal system...and outside the...specialized area of expertise" of the decision maker, less deference will be paid and the correctness standard will apply. Questions of central importance to the legal system are those whose "impact on the administration of justice as a whole" is such that they "require uniform and consistent answers". ...
...Alberta Teachers' Association held that "[t]rue questions of jurisdiction are narrow and will be exceptional." [fn 21: 2011 SCC 61 at para 39... .]…
In the area of taxpayer relief, there are only a handful of cases in which the courts have applied a correctness standard of review, and only two post-Dunsmuir that I am aware of in relation to subsection 220(3.1). [fn 25: Bozzer...2012 FCA 266...and to a limited extent in Cayer...2009 FC 1195... .]
Questions of natural justice are considered to be questions of law and reviewed on the same standard:…[fn 24: Waycobah First Nation...2010 FC 1188..., aff'd 2011 FCA 191... . See also Suresh...2002 SCC 1...wherein it is established that the standard of review for procedural issues is correctness.]
For questions of bias, the courts have indicated that a correctness standard will apply. [fn 26: Ugro...2009 FC 825 at para 22..., citing Uluk...2009 FC 122...and Lai...2007 FC 361... .]
The foregoing standards of review apply to the Federal Court in the context of the judicial review of a ministerial decision. Regarding the standard of review of the Federal Court's judicial review of taxpayer relief decisions, there is now strong support from the Supreme Court for the position that on an appeal from a judicial review application, the Federal Court of Appeal is free to substitute its judgment for that of the Federal Court application judge where the appellate court determines either that the wrong standard of review was selected by the application judge or that the correct standard of review was incorrectly applied by the application judge. [fn 27: Agraira...2013 SCC 36 at paras 45 to 47,…]
Examples of unreasonable decisions (pp. 42:8-9)
As to what renders a decision unreasonable, a few broad themes emerge from the case law: fettering of discretion, failure to consider relevant facts or arguments, and failure to observe other principles of procedural fairness or natural justice.
In Stemijon Investments, [fn 28: ...2011 FCA 299 at paras 31 and 58-60... .]…[t]he court concluded that…"[a] decision that is the product of a fettered discretion must per se be unreasonable." The court found that the minister fettered his discretion by not drawing upon subsection 220(3.1) to guide his discretion, but rather by looking exclusively to the information circular... .
In Laframboise, [fn 32: ...2008 FC 196 at para 12... . See also Cogesco...2013 FC 1238 at paras 18-20... and 3500722 Canada...2008 FC 554... .] the Federal Court allowed the application for judicial review on the basis that the court was unable to determine on the record whether the CRA considered certain facts that the court considered relevant: …
In the early years of the administration of subsection 220(3.1), it was more common for the Federal Court to find a lack of independence within the CRA during the process of subsequent reviews. These cases are rare today… .
Limited nature of relief (p. 42:10-11)
The Federal Court of Appeal in Slau confirmed that in allowing an application for judicial review, it is not open to the reviewing court to mandate an outcome where more than one is possible: …
The limited remedy that a reviewing court can give in taxpayer relief cases is outlined by the Federal Court in Kapil:
As a matter of law, this Court does not have the jurisdiction to order the Minister to waive taxes, penalties, and arrears interest. The jurisdiction of the Court is limited to ordering the Minister to substantively reconsider his decisions not to waive the taxes and related interest and penalties. ...[fn 38: Kapil v Canada (Revenue Agency), 201.1 FC 1373 at para 20,…]
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