Docket: 2007-784(GST)G
BETWEEN:
SHORELINE PENTHOUSE OF BARRIE LIMITED,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Motion
heard on October 4, 2007 at Toronto, Ontario
Before: The Honourable
Justice Valerie A. Miller
Appearances:
|
Counsel for the Appellant:
|
Sarah
E. Mott-Trille
|
|
Counsel for the Respondent:
|
Marie-Thérèse Boris and Louis L'Heureux
|
____________________________________________________________________
JUDGMENT
The
motion is granted and the appeal is dismissed in accordance with the attached
Reasons for Judgment.
The
Respondent is awarded costs.
Signed
at Halifax, Nova Scotia this 12th day of October, 2007.
“V.A. Miller”
Citation: 2007TCC609
Date: 20071012
Docket: 2007-784(GST)G
BETWEEN:
SHORELINE PENTHOUSE OF BARRIE LIMITED,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
V.A. Miller, J.
[1] The Respondent has brought this motion to
strike the Notice of Appeal on the basis that it discloses no reasonable
grounds for appeal. The motion is pursuant to paragraph 58(1)(b) of the Tax
Court of Canada Rules (General Procedure).
[2] The Appellant has relied on equity maxims
and stated that if these maxims are followed the Goods and Services Taxes (“GST”)
assessed should be reduced. In other words, it did not question the assessments
for 1996 to 2003. I agree with the Respondent that the Notice of Appeal should
be struck.
[3] The material facts relied on in the Notice
of Appeal include the following:
a)
the history of the
ownership of shares of the Appellant from 1967 to 1994;
b)
in 1994 all shares in
the Appellant were transferred to a trust and Frank Kisluk, a Chartered
Accountant and Trustee in Bankruptcy, was the trustee;
c)
in 1995 Frank
Mott-Trille made a proposal in bankruptcy;
d)
numerous complaints
about Frank Kisluk;
e)
that tax returns for
the Appellant for the period 1995 to 2003 were submitted in August 2004
pursuant to the voluntary disclosure program;
f)
complaints about the
Minister of National Revenue and complaints about the Ontario Ministry of
Finance.
[4] The issues raised in the Notice of Appeal
are as follows:
a)
Res judicata. (This issue relates to the bankruptcy of
Frank Mott-Trille.)
b)
Bankruptcy. (This issue
as well relates to the bankruptcy of Frank Mott-Trille.)
c)
Equity Maxims.
d)
GST. (Counsel for the
Appellant explained that if the Canada Revenue Agency (“CRA”) applied the
equity maxims the amount of taxes should be reduced.)
[5] In the Notice of Appeal, the Appellant and
Frank Mott-Trille are not treated as separate entities. The bankruptcy of Frank
Mott-Trille is treated as the bankruptcy of the Appellant. The disputes that
Frank Mott-Trille may have with the former trustee are now transferred to the CRA.
Nowhere in the Notice of Appeal does the Appellant mention an issue or fact
that relates to the computation of the taxes assessed or its liability for
taxes. The Appellant does not dispute that it collected GST which it is
required to remit.
[6] Pursuant to section 306 of the Excise
Tax Act this Court has jurisdiction to vacate or vary an assessment if it
is found that the amounts assessed are not properly owing under the Act
(Ludco Enterprises Ltd. v. R., [1996] 3 C.T.C. 74 (FCA)). This Court
does not have the jurisdiction to grant a remedy based only on the application
of equity maxims. As stated by Justice Bowie in Hamilton v. The Queen, [2007] 1 C.T.C. 2504 at paragraph 8:
8 There are two obvious reasons
that this argument must fail. The first is that I have no jurisdiction to grant
a remedy based only on equitable principles, and this argument is, as Mr.
Easton candidly admitted, simply an appeal to equity. My jurisdiction is
limited to applying the provisions of the Act to the facts of the case
and determining whether the Minister's assessment is correct. I have no
jurisdiction in equity.3 …
[7] The test that is applied for striking out pleadings is
whether assuming the facts stated in the pleadings are true, is it “plain and
obvious” that the appeal cannot succeed? (Hunt v. Carey Canada Inc.,
[1990] 2 S.C.R. 959) Only if the appeal is certain to fail should the Notice
of Appeal be struck. (Main Rehabilitation Co. v. The Queen, 2004
FCA 403 at paragraph 3).
[8] The Notice of Appeal does not challenge the
assessments. The quantum and calculation of the tax is never questioned.
Applying the test stated above and assuming that all the facts plead in the
Notice of Appeal are true, it is “plain and obvious” that the appeal cannot
succeed. This Court does not have the jurisdiction to grant the remedy
requested in the Notice of Appeal.
[9] The motion is granted and the appeal is
dismissed. The Respondent is awarded costs.
Signed at Halifax, Nova Scotia this 12th day of October, 2007.
“V.A. Miller”
CITATION: 2007TCC609
COURT FILE NO.: 2007-784(GST)G
STYLE OF CAUSE: Shoreline Penthouse of Barrie Limited v. The
Queen
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: October 4, 2007
REASONS FOR JUDGMENT BY: The
Honourable Justice Valerie Miller
DATE OF JUDGMENT: October 12, 2007
APPEARANCES:
|
Counsel for the
Appellant:
|
Sarah E. Mott-Trille
|
|
Counsel for the
Respondent:
|
Marie-Thérèse Boris and Louis L'Heureux
|
COUNSEL OF RECORD:
For the Appellant:
Name: Sarah E. Mott-Trille
Firm:
For the
Respondent: John H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa,
Canada
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