Docket: 2004-448(GST)I
BETWEEN:
STRAUSS ENTERPRISES LTD.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Motion heard on July 6, 2004 at Belleville, Ontario
Before: The Honourable Justice T.
O'Connor
Appearances:
|
Agent for the Appellant:
|
Trueman
Tuck
|
|
|
|
|
Counsel for the Respondent:
|
Richard Gobeil
|
____________________________________________________________________
ORDER
Upon Motion by the Respondent that this appeal be
heard under the Tax Court of Canada Rules (General Procedure);
This
Motion is granted and the following Order is issued:
(a) an Order ordering that
sections 17.1, 17.2 and 17.4 to 17.8 of the Tax Court of Canada Act
apply in respect of this appeal in respect of which sections 18.3003 and
18.3007 to 18.302 would otherwise apply;
(b) an Order ordering the Appellant
to file on or before June 20, 2005, an amended Notice of Appeal in
conformity with rule 48 and Form 21(1)(a) of the Tax Court of Canada Rules
(General Procedure); and
(c) an Order extending the time for
the Respondent to file a Reply to the Appellant's Amended Notice of Appeal by
60 days from the date of the filing of the Amended Notice of Appeal.
There shall be no costs on this Motion.
Signed at Ottawa, Canada this 19th day of April, 2005.
T. O'Connor
Citation: 2005TCC262
Date: 20050419
Docket: 2004-448(GST)I
BETWEEN:
STRAUSS ENTERPRISES LTD.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
O'Connor, J.
[1] The Respondent makes
a Motion essentially for an Order that the appeal in this matter be moved up to
the Tax Court of Canada Rules (General Procedure) and thus be removed
from the Tax Court of Canada Rules (Informal Procedure).
[2] The basic facts as
well as the applicable law are best set forth in the Respondent's written
submissions. These written submissions read as follows:
PART I – STATEMENT OF FACTS
1. The Appellant has filed an appeal with the
Tax Court of Canada disputing $427,800.00 in Net Tax, plus interest and
penalties, assessed under Part IX of the Excise Tax Act by the Minister
of National Revenue (the "Minister") for the reporting periods from
March 1, 1999 to June 30, 2002.
2. The Appellant's Notice of Appeal was
transmitted to the Minister on February 10, 2004.
3. The Appellant's Notice of Appeal filed on
January 30, 2004 is not in Form 21(1)(a) as required by Rule 48 of Tax
Court of Canada Rules (General Procedure).
PART II – POINTS IN ISSUE
4. Should the Appeal proceed under this Court's
General Procedure?
5. Should the Appellant's Notice of Appeal be
amended to be in Form 21(1)(a)?
PART III - SUBMISSIONS
6. Section 18.3002 of the Tax Court of
Canada Act (the "Act") provides that on the request of the
Attorney General, the Court shall order that sections 17.1, 17.2 and 17.4 to
17.8 of the Act apply to an appeal that would otherwise be governed by
sections 18.3003 and 18.3007 to 18.302 of the Act. The request must be
made not later than 60 days after the Tax Court of Canada transmits the
Appellant's Notice of Appeal to the Minister.
7. The Respondent's request in this case has
been made within the 60 day period specified by section 18.3002 of the Act.
8. The amount that would be in dispute in
this appeal is $427,800.00. As a consequence, neither of the special cost rules
for cases in which the amount in dispute is less then $7,000.00 in section
18.3002 or $50,000 in 18.3007 of the Act, apply.
9. It is therefore submitted that the
conditions for having this case adjudicated under the General Procedure have
been satisfied.
10. Justice Bowie explained the purpose of
pleadings in Zelinski v. Her Majesty the Queen: "The purpose of
pleadings is to define the issues in dispute between the parties for the
purposes of production, discovery and trial. What is required of a party
pleading is to set forth a concise statement of the material facts upon which
he relies. Material facts are those facts, which, if established at trial, will
tend to show that the party pleading is entitled to the relief sought".
11. Rule 48 of the Tax Court of Canada Rules
(General Procedure) provides that:
48. Every notice of appeal shall be in Form
21(1)(a).
48. L'avis d'appel doit se conformer à la formule
21(1)a).
12. Form 21(1)(a) provides that the Appellant states its address
in full, identifies the assessment under appeal, relates the material facts
relied on, specifies the issues to be decided, refers to the
statutory provisions relied on, sets forth the reasons the Appellant
intends to rely on and indicates the relief sought (see attached
Form 21(1)(a)).
13. The Notice of Appeal as drafted makes it difficult for the
Respondent to admit, deny or put in issue the facts.
14. It is therefore submitted that this Court should order that
the Notice of Appeal be amended to reflect the Tax Court of Canada Rules
(General Procedure).
PART IV – ORDER SOUGHT
15. The Respondent seeks the following relief:
(a) an Order ordering that sections 17.1, 17.2 and 17.4 to 17.8
of the Tax Court of Canada Act apply in respect of this appeal in
respect of which sections 18.3003 and 18.3007 to 18.302 would otherwise apply;
(b) an Order ordering the Appellant to file an amended Notice of
Appeal in conformity with rule 48 and Form 21(1)(a) of the Tax Court of
Canada Rules (General Procedure); and
(c) an Order extending the time for the Respondent to file a
Reply to the Appellant's Amended Notice of Appeal by 60 days from the date of
the filing of the Amended Notice of Appeal;
(i) in the alternative an Order extending the time for the
Respondent to file a Reply to the Appellant's Notice of Appeal by 60 days from
the date of the Order.
[3] In my opinion the
Submissions of the Respondent are well founded and for the reasons set forth
therein the Motion is granted and the Order sought for is issued.
Signed at Ottawa, Canada, this 19th day of April 2005.
T. O'Connor
CITATION: 2005TCC262
COURT FILE NO.: 2004-448(GST)I
STYLE OF CAUSE: Strauss Enterprises Ltd. v. H.M.Q.
PLACE OF HEARING: Belleville,
Ontario
DATE OF HEARING: July 6, 2004
REASONS FOR ORDER BY: The
Honourable Justice T. O'Connor
DATE OF ORDER: April 19, 2005
APPEARANCES:
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Agent for the
Appellant:
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Trueman Tuck
|
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Counsel for the
Respondent:
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Richard Gobeil
|
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the
Respondent: John H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa,
Ontario
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