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Citation: 2003TCC818
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Date: 20031205
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Docket: 2003‑24(IT)G
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BETWEEN:
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PINTENDRE AUTOS INC.,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR ORDER
Paris, J.
[1] By this motion, the Respondent seeks the
following:
(a) a determination of a question of
law pursuant to paragraph 58(1)(a) of the Tax Court of Canada
Rules (General Procedure) (the "Rules"), that is, whether
a fin de non recevoir based on article 1457 of the Civil Code of
Québec or on section 3 of the Crown Liability and Proceedings Act
may be raised before the Tax Court of Canada on appeal from an assessment?
(b) in the event that the question of
law is answered in the negative, an order striking out the Amended Notice of
Appeal; or
(c) in the event that the question of
law is answered in the affirmative, an extension of time for filing the Reply
to Notice of Appeal.
[2] The
Respondent is relying on the court file including the Amended Notice of Appeal
filed by the Appellant on February 21, 2003.
[3] The
Respondent's grounds for the motion are:
(a) the question to be determined is
a question of law; and
(b) the determination of the question
may dispose of the proceeding in its entirety.
[4] The
Appellant opposes the motion.
[5] The
Appellant argues that there has been no agreement between the parties on the
facts to be taken into account by the Court and, therefore, that the
Respondent's motion should not be heard. It argues that the determination of a
question of law can be made only after a factual foundation for the
determination has been established. Because Rule 58(2) provides
that no evidence is admissible on that kind of application, except with leave
of the Court or on consent of the parties, neither of which condition has been
fulfilled in this case, the Appellant submits that the motion cannot proceed.
[6] However,
it is not necessary in all applications to the Court for a determination of a
question of law that there be agreement on the facts giving rise to the
question. In Perera v. Canada,
Létourneau J.A. made the following comments at pages 391‑392:
It may be useful to recall that
Rule 474 does not confer on anyone the right to have questions of law
determined before trial; it merely confers on the Court the discretion to
order, on application, that such a determination be made. In order for the
Court to be in a position to exercise that discretion, it must be satisfied, as
was stated in the Berneche case, that the proposed questions are pure
questions of law, that is to say questions that may be answered without having
to make any finding of fact. Indeed, the purpose of the Rule is to have the
questions answered before trial; it is neither to split the trial in parts nor
to substitute for part of the trial a trial by affidavits.[3] This
is not to say, however, that the parties must agree on the facts giving rise to
the legal questions; a legal question may be based on an assumption of truth of
the allegations of the pleadings provided that the facts, as alleged, be
sufficient to enable the Court to answer the question.[4]
(Emphasis added.)
[7] I
am of the view that the Respondent's motion may proceed on the basis of the
allegations in the pleadings filed by the Appellant and on the assumption of
the truth of the facts alleged therein. The facts alleged in the Amended Notice
of Appeal are sufficient to enable the Court to answer the question of law that
is raised by the Respondent in this Motion.
[8] I
am also of the opinion that the determination of the question of law raised in
this application could dispose of all of the proceeding given that the question
concerns the jurisdiction of the Court and its power to grant the relief sought
by the Appellant.
Facts:
[9] The Appellant is a Quebec corporation that has
been assessed by the Minister of National Revenue (the "Minister")
under two Notices of Assessment for failing to remit source deductions withheld
from the wages of its employees between December 31, 2001, and
May 16, 2002. The Appellant contracted with another party ("Les
Services de personnels") to have payroll services provided to it.
[10] In the Amended Notice of Appeal, the Appellant
states at paragraphs 9
to 32:
[TRANSLATION]
9. In
accordance with several years of widespread practice within small, medium and
large businesses, on November 23, 2001, the Appellant entered into a
contract with a company carrying on business as "Les Services de
personnel" for providing payroll services to it, including the
payment of wages to the Appellant's employees, and the remittance of source
deductions to the levels of government;
10. The duration of this contract
was for a two‑year period, beginning December 24, 2001;
11. Prior to "Les Services de
personnels" assuming the payroll responsibilities for the Applicant's [sic] employees and the
remittance of source deductions to the levels of government, the Appellant
itself remitted source deductions on a weekly basis, which it had always done
for many years in the past;
12. The amounts therefore remitted
by the Appellant to the Respondent were significant and amounted to, on
average, $23,000 every week;
13. Without the Appellant's
knowledge, no deductions were remitted to the Respondent by "Les Services
de personnels" during the period covered by the assessments in issue, that
is, from December 31, 2001, to May 16, 2002, of which the
Appellant was only informed by the Respondent's employees on approximately
May 13, 2002;
14. The Appellant had no reason to
question that such remittances were not being made and had no way of verifying
this breach;
15. On the one hand, every week the
Appellant received from "Les Services de personnels" a copy of a
cheque indicating the remittances allegedly made to the Respondent by "Les
Services de personnels";
16. On the other hand, as of
March 13, 2002, one of the Respondent's employees (whose identity
cannot be established on the date hereof), asked the Appellant's comptroller
for confirmation that "Les Services de personnels" was processing the
payroll for the Appellant's employees and was remitting source deductions to
the Respondent;
17. Such written confirmation was
faxed to "trust accounts" at the request of the Respondent's
employee;
18. At no time during that
telephone call was the Appellant's comptroller informed that source deductions
for the 11 previous weeks had not yet been remitted to the Respondent;
19. On April 15, another
employee of the Respondent, Mario Simard, contacted the Appellant to find
out into which account the source deductions were being remitted;
20. The Appellant's comptroller
reiterated that it no longer had an active account in its name because source
deductions were being withheld and remitted by "Les Services de
personnels", as confirmed in a letter dated March 13;
21. At that time, the Appellant
believed that all of this was due to a purely administrative misunderstanding
at the Agency, not that "Les Services de personnels" was failing
to remit source deductions;
22. Neither Mr. Simard nor the
Respondent's other employee who had contacted the Appellant on
March 13, 2002, informed the Appellant about what they clearly should
have known for several weeks, that is, the failure of "Les Services de
personnels" to remit source deductions;
23. Moreover, since at least the
fall of 2001, it appears that "Les Services de personnels"
had been the object of an inquiry, an investigation or other form of audit by
the Respondent;
24. Lastly, at a meeting between
the Appellant's representatives and Mario Simard, the Respondent's employee,
held on May 13, 2002, Mr. Simard admitted that the Agency had made
errors in the file and that it was not the first time that the Agency had dealt
with "Les Services de personnels", on which he refused to elaborate;
25. It was at that
May 13, 2002, meeting that the Appellant was first informed that
"Les Services de personnels" had not remitted any weekly source
deductions since the very beginning of 2002;
26. Yet, the Appellant was a
"threshold 2" employer, that is to say, it was required to remit
source deductions on a weekly basis;
27. As mentioned above, the weekly
amount was approximately $23,000, therefore significant enough; the tracking of
cash receipts of source deductions for the type of business run by the
Appellant was very simple unlike a seasonal business, for example;
28. Therefore, the Respondent, her
agents and her employees should have realized very quickly the absence of
source deduction remittances with respect to the Appellant's employees, which
was in stark contrast to the Appellant's practice in past years, when
remittances were made regularly and in full, without omission;
29. On May 29, 2002, the
Appellant received an "auditor's statement of account" stating that
following an audit of payroll registers made on May 29, 2002, for the
period from December 31, 2001, to May 16, 2002, a balance
owing of $410,573.61 was due;
30. The same auditor's statement of
account stated that a "fairness package will be filed for $36,127.72 in
penalties and $5,668 in interest";
31. On June 7, 2002, the
Appellant received confirmation that pursuant to fairness package provisions,
the Respondent was waiving the penalties and interest in the case at issue;
32. The assessments in issue of
June 10, 2002, were subsequently sent out;
[11] As noted by the Respondent in her Notice of Motion, the Appellant's
sole ground for appealing the assessments is that the amounts assessed are not
admissible in their entirety due to the [TRANSLATION]
"errors and omissions by the Minister's agents" during the period
covered by the assessments. This argument is set out in paragraphs 33
to 36 of the Amended Notice of Appeal:
[TRANSLATION]
33.
Clearly, had the Appellant been informed in a timely manner of the
irregularities noted in its account, it would have taken the necessary steps at
that time to avoid or minimize the financial losses it now faces following the
assessments in issue and their confirmation by the Respondent;
34. In light of the foregoing, the
Respondent, her agents and/or employees had the legal obligation to send the
Appellant, by late January 2002 at the latest, the information to which it
could not have access and of which it could not have been aware;
35. On March 13 and
April 15, 2002, during the conversations with the Respondent's agents
and/or employees, the Appellant, once again, should have been informed of the
irregularities on file and of the failure by "Les Services de
personnels" to remit source deductions since the start of the year;
36. The aforementioned information
or disclosure errors and omissions by the Respondent and her agents and/or
employees are a fin de non recevoir against the assessments in issue,
even a substantial part thereof:
[12] In its Amended Notice of Appeal, the Appellant
concludes by seeking to have the Court:
[translation]
DECLARE
inadmissible and cancelled the Respondent's debts as established in the
assessment of June 10, 2002, in the amount of $369,506 covering the
period from December 31, 2001, to May 16, 2002 (account
number 10420 7337 RP0001) and in the assessment of
June 10, 2002, in the amount of $4,887.25 covering the period from
December 31, 2001, to May 16, 2002 (account number
10420 7337 RP0002);
In the alternative, VARY
the aforementioned assessments and reduce them to the sum of $93,806.53;
In the alternative, VARY
the aforementioned assessments and reduce them to the sum of $232,087.03;
In the alternative, VARY
the aforementioned assessments and reduce them to the sum of $350,528.57;
Respondent's Submissions
[13] The Respondent's position is that the court
lacks jurisdiction to rule on the Appellant's fin de non recevoir
because it deals with the collection of the amount assessed rather than with
the amount of the tax assessed.
(1) Jurisdiction of the Tax Court of Canada
[14] The Respondent submits that, for the purposes of
the assessments in issue, the jurisdiction of this court is determined by
section 12 of the Tax Court of Canada Act (the "T.C.C.A.") and also refers to sections 169
and 171 of the Income Tax Act,
(the "I.T.A.") and section 103 of the Employment
Insurance Act,
(the "E.I.A."). Those sections read:
Tax Court of Canada Act
12.(1) The Court has exclusive
original jurisdiction to hear and determine references and appeals to the Court
on matters arising under the Air Travellers Security Charge Act, the Canada
Pension Plan, the Cultural Property Export and Import Act,
Part V.1 of the Customs Act, the Employment Insurance Act,
the Excise Act, 2001, Part IX of the Excise Tax Act,
the Income Tax Act, the Old Age Security Act and the Petroleum
and Gas Revenue Tax Act, where references or appeals to the Court are
provided for in those Acts.
(2) The Court has exclusive
original jurisdiction to hear and determine appeals on matters arising under
the War Veterans Allowance Act and the Civilian War-related Benefits
Act and referred to in section 33 of the Veterans Review and Appeal
Board Act.
(3) The Court has exclusive
original jurisdiction to hear and determine questions referred to it under
section 51 or 52 of the Air Travellers Security Charge Act,
section 97.58 of the Customs Act, section 204 or 205 of
the Excise Act, 2001, section 310 or 311 of the Excise
Tax Act or section 173 or 174 of the Income Tax Act.
(4) The Court has exclusive
original jurisdiction to hear and determine applications for extensions of time
under section 45 or 47 of the Air Travellers Security Charge Act,
subsection 28(1) of the Canada Pension Plan, section 33.2 of
the Cultural Property Export and Import Act, section 97.52 or 97.53
of the Customs Act, subsection 103(1) of the Employment
Insurance Act, section 197 or 199 of the Excise Act, 2001,
section 304 or 305 of the Excise Tax Act or section 166.2
or 167 of the Income Tax Act.
Income Tax Act
Appeal
169. Where a taxpayer has
served notice of objection to an assessment under section 165, the
taxpayer may appeal to the Tax Court of Canada to have the assessment vacated
or varied after either
(a) the Minister has confirmed the assessment
or reassessed, or
(b) 90 days have elapsed after service of the
notice of objection and the Minister has not notified the taxpayer that the
Minister has vacated or confirmed the assessment or reassessed,
but no appeal under this section may be instituted
after the expiration of 90 days from the day notice has been mailed to the
taxpayer under section 165 that the Minister has confirmed the assessment
or reassessed.
Disposal of Appeal
171.(1) The Tax Court of
Canada may dispose of an appeal by
(a) dismissing it; or
(b) allowing it and
(i) vacating the assessment,
(ii) varying the assessment, or
(iii) referring the assessment back to the Minister
for
reconsideration and reassessment.
Employment
Insurance Act
Appeal to the Tax Court of Canada
(Objection and Review)
103.(1) The Commission or a person affected by a
decision on an appeal to the Minister under section 91 or 92 may
appeal from the decision to the Tax Court of Canada in the prescribed manner
within 90 days after the decision is communicated to the person, or within
such longer time as the Court may allow on application made to it within those
90 days.
[15] By virtue of those provisions, the Tax Court of Canada is given
jurisdiction over appeals from assessments made under the ITA and the EIA
but not over disputes regarding the collection of amounts that have been
assessed under those Acts.
(2) Fin de non recevoir
[16] The Respondent argues that a fin de non recevoir like the
one pleaded by the Appellant in this case is a means of preventing a creditor
from bringing an action in court for the payment of a debt owed to it. The
Supreme Court of Canada considered the nature of a fin de non recevoir
in the case of National Bank of Canada v. Soucisse.
Mr. Justice Beetz referred to the following descriptions of a fin
de non recevoir at page 359:
[TRANSLATION] Fins de
non-recevoir against debts consist of certain causes which prevent a
creditor from coming to court to enforce his claim.
…
[TRANSLATION] Fins de
non-recevoir do not extinguish the debt, but they make it ineffective by
precluding the creditor from bringing the action to which it gives rise.
[17] The fin de non recevoir is a kind of preliminary objection to
the creditor's claim. It does not dispute the existence of the debt but rather
the right of the creditor to use the courts to enforce payment of the debt.
Where the plea is successful, the debt is not extinguished; the creditor is
simply prevented from collecting on it.
[18] However, the Tax Court does not have the power to rule on the
collection of tax liabilities. The Court can hear only appeals from assessments
made under the ITA and EIA that pertain to the existence of the
tax liability or to the duty to pay employment insurance premiums. The
collection of tax liabilities is a separate matter altogether and because a fin
de non recevoir is directed at preventing collection on an existing
liability, the Tax Court does not have jurisdiction to grant this remedy.
[19] In the only reported case in which an Appellant sought to invoke
before the Tax Court a fin de non recevoir like the one in this case,
the exception was rejected on the grounds that the Appellant had not proved the
elements required to avail itself of a fin de non recevoir. As such, the Court did not have to
rule on whether a fin de non recevoir may have been allowed. This case,
therefore, cannot be taken as authority for the position that the Court has the
power to grant this remedy.
Furthermore, because the fin de non recevoir is based on civil
liability, it can only be granted by a court having jurisdiction to entertain
claims for damages, a jurisdiction that the Tax Court does not have.
Appellant's Submissions
(1) Fin de non recevoir
[20] The Appellant
argues that the conduct of the Minister's agents in this case was in breach of
the duty imposed on them by article 1457 of the Civil Code of Québec
(formerly article 1053 Civil Code of Lower Canada) and that this
breach gives rise to a fin de non recevoir in the present case.
Article 1457 provides:
Every person has a duty to abide by the
rules of conduct which lie upon him, according to the circumstances, usage or
law, so as not to cause injury to another.
Where he is endowed with reason and fails
in this duty, he is responsible for any injury he causes to another person and
is liable to reparation for the injury, whether it be bodily, moral or material
in nature.
He is also liable, in certain cases, to
reparation for injury caused to another by the act or fault of another person
or by the act of things in his custody.
[21] In civil law, civil liability may be invoked
by a defendant as a (under article 1457 et seq. of the Civil Code) fin
de non recevoir. A fin de non recevoir is a preliminary objection to
the admissibility of a party's claim.
[22] The Appellant relies
on the decision of the Supreme Court of Canada in Soucisse, supra,
where Beetz J. said:
One possible legal basis
for a fin de non-recevoir is the wrongful conduct of the party against
whom the fin de non-recevoir is pleaded. Mignault J. refers to this
in the above-cited passage from Grace and Company v. Perras (supra) when
he refers to arts. 1053 et seq. of the Civil Code. This
is noted by Lemerle at p. 144 of his treatise, where he writes:
[TRANSLATION] No
complaint can be based on, nor advantage derived from, one's own action,
negligence, imprudence or incapacity, much less fault,
to the detriment of another. This proposition is based on the fact [...] that
no one should derive a benefit from a fault committed by him: on the contrary,
he should repair the damage he has caused.
(2) Jurisdiction of the Tax Court of Canada
[23] The Appellant
submits that the wording of section 12 of the Tax Court of Canada Act
is broad enough to include the authority to apply a fin de non recevoir
based on civil liability arising under article 1457 of the Civil Code
of Québec. In particular, the Appellant relies on the following portion of
section 12:
The Court has exclusive original
jurisdiction to hear and determine references and appeals to the Court on
matters arising under the Air Travellers Security Charge Act, the Canada
Pension Plan, the Cultural Property Export and Import Act,
Part V.1 of the Customs Act, the Employment Insurance Act ....
(Appellant's emphasis.)
[24] The Appellant points
to the different wording used in subsections 12(3) and 12(4) of the T.C.C.A.,
which refer to "questions referred to [the Court] under ... section 173
or 174 of the Income Tax Act …" and "applications for
extensions of time under ... section 97.52
or 97.53 of the Customs Act …" (Appellant's emphasis) to
support its position that the phrase "arising under" the laws in
issue should be given an interpretation broader than the one argued by the Respondent.
In the Appellant's view, the Court has jurisdiction to determine any question
with respect to the process followed by the agents of the Minister in making an
assessment and has jurisdiction to determine the legality of actions or
omissions by those agents in that process.
[25] To further support
its position, the Appellant relies on subsection 152(1) of the I.T.A.,
which requires that the Minister examine a taxpayer's return and assess the tax
"with all due dispatch" and argues that the Minister is thereby
required to exercise care in the assessment process. Failure to exercise due
care in the assessment process could give rise to an appeal over which the Tax
Court would have jurisdiction.
[26] The Appellant is
seeking to have the Court apply section 12 of the Interpretation Act
in determining the scope of the Tax Court's jurisdiction. That section reads:
Enactments
Remedial
Every enactment is
deemed remedial, and shall be given such fair, large and liberal construction
and interpretation as best ensures the attainment of its objects.
[27] The Appellant
submits that the words "matters arising under" the laws in issue
would include questions relating to any element that would throw light on the
circumstances surrounding the establishment of a taxpayer's tax liability.
[28] The Appellant refers
the Court to Manke v. Canada
and to Ramsay v. Canada
in which this Court found it
had jurisdiction to hear appeals dealing with the issue of whether the
Appellants were entitled to a credit for source deductions withheld from their
wages but not remitted by their employer. The Respondent in those cases argued
that the Court lacked jurisdiction to decide those issues because they related
to the payment of the tax liability and not to the actual assessment of the
liability.
[29] The Appellant
contends that it is appealing the Minister's calculation of credits relating to
its source deductions and that the Court has jurisdiction over the appeal on
the same reasoning applied in Manke and Ramsay, supra.
[30] Finally, the
Appellant submits that it would be in the interest of procedural efficiency and
the sound administration of justice to allow its appeal to proceed in this
Court. Otherwise, the Appellant would have to commence identical proceedings in
the Federal Court or Superior Court of Québec.
Analysis
[31] The issue in this
motion is whether the Court has jurisdiction to rule on a fin de non
recevoir that was pleaded by the Appellant and based on an alleged breach
by the Minister's agents of article 1457 of the Civil Code of Québec.
[32] The Tax Court of
Canada is a Court created by the Tax Court of Canada Act,
R.S.C. 1985, c. T‑2 as amended. Although the Court is a
"superior court of record" under section 3 of the T.C.C.A.,
this does not mean that the Court has a jurisdiction equivalent to a superior
court of a province. In Puerto Rico v. Hernandez, the Supreme Court of Canada dealt
with a question relating to the jurisdiction of the Federal Court, which
is also a statutory Court. At pages 232 and 233, Mr. Justice Pigeon
said:
I do not suggest that
the concluding words of s. 3 of the Federal Court Act: "shall
continue to be a superior court of record having civil and criminal
jurisdiction" are to be read as making, in federal matters, the Federal
Court a "superior court" within the same meaning of that expression
as applied to the superior courts of the provinces, that is courts having
jurisdiction in all cases not excluded from their authority or, as
Ritchie C.J. put it in Valin v. Langlois [(1879),
3 S.C.R. 1] at p. 19, "Courts, bound to take
cognizance of and execute all laws …". … In view of all this, it
appears to me that the Federal Court is a "superior court" in
the sense of a court having supervisory jurisdiction. This is a meaning often
used, as appears from the numerous authorities reviewed in Re Macdonald
[[1930] 2 D.L.R. 177] and it is significant that such jurisdiction is
conferred by the Act.
[33] The Tax Court's
enabling statute gives it exclusive jurisdiction over appeals to the Court on matters
arising under the Income Tax Act and the Employment Insurance Act,
inter alia, "where references or appeals to the Court are provided for
in those Acts (s. 12 T.C.C.A.). The reference to the appeal
provisions contained in those Acts restricts the jurisdiction of the Tax Court
to appeals from assessments.
The Appellant's arguments in support of a broader interpretation of the Court's
jurisdiction fail to take into account that wording.
[34] In MacMillen
Holdings Limited v. M.N.R.,
Rip J. (as he then was) stated:
Section 12 of the Tax
Court of Canada Act grants this Court original jurisdiction to hear and
determine appeals on matters arising under the Act and other statutes. . . .
The due exercise of this Court's jurisdiction on matters arising under the Act
is to hear and determine an appeal from a tax assessment. I cannot
overemphasize that the Court's original jurisdiction is to hear and determine
appeals in matters arising under the Act; an action against the Crown based on
the Act, but is not an appeal from an assessment, is not an appeal arising
under the Act, which is within the jurisdiction of this Court.
[35] As to the nature of
an assessment, Rip J. quoted Mr. Justice Thorson in Pure Spring Co. Ltd. v. Minister
of National Revenue:
… The assessment, as I
see it, is the summation of all the factors representing tax liability,
ascertained in a variety of ways, and the fixation of the total after all the
necessary computations have been made.
[36] Rip J.
concluded that "[a]n assessment by its very nature is a determination of
liability of a taxpayer".
[37] The appeals from
assessments under subsection 169(1) of the Income Tax Act and
subsection 103(1) of the Employment Insurance Act are appeals from
the amount of the liability fixed by the assessment. The Court's jurisdiction
with respect to the Minister's determination of tax liability is whether the
amount of tax assessed is correct "based on the facts and the relevant
law".
Recently, in Canada (Attorney General) v. Webster, the Federal Court of
Appeal stated that the jurisdiction of the Tax Court is limited to determining
whether the assessments are correct in law.
[38] In this case, in
pleading a fin de non recevoir, the Appellant is not challenging the
amount of the assessments. In the Amended Notice of Appeal, the Appellant does
not contest the fact that "Les Services de personnels" failed to
remit source deductions that had to be remitted on behalf of the Appellant.
[39] The Appellant has
not argued that the Minister erred in any respect in applying the provisions of
the Income Tax Act or the Employment Insurance Act to its
situation or in respect of any other essential element of the assessment. The
Appellant only takes issue with the conduct of the Minister's agents in the
period covered by the assessments and submits that this alleged conduct, under
the Civil Code, should bar the Minister from recovering the unremitted source
deductions. I agree with counsel for the Respondent that the Appellant's fin
de non recevoir is directed at the collection of the amounts assessed
rather than at any defect or error in the assessments. The Appellant is seeking
to prevent the Minister from enforcing the tax liability indicated in the
assessments.
[40] This is also
apparent from the relief the Appellant is seeking, that is, a declaration
relating to the liabilities established by the assessments:
[translation]
DECLARE inadmissible and
cancelled the Respondent's liabilities as established in the assessment of
June 10, 2002, in the amount of $369,506 covering the period from
December 31, 2001, to May 16, 2002 (account number
10420 7337 RP0001) and in the assessment of June 10, 2002, in
the amount of $4,887.25 covering the period from December 31, 2001,
to May 16, 2002 (account number 10420 7337 RP0002);
[41] To the extent that,
in the alternative, the Appellant seeks to have the assessments reduced by its fin
de non recevoir, the basis for the reduction is the same—the [TRANSLATION]
"liabilities are inadmissible".
[42] Matters relating
to the collection of tax have been held to be beyond the jurisdiction of this
Court. In Liu v. The Queen Judge Bowman (as he then
was) considered the jurisdiction of this Court with respect to crediting an
Appellant for source deductions withheld but not remitted by the employer and
he stated at paragraph 14:
Even if I had concluded
differently it would not have been within the power of this court to declare
that in determining the balance owing to the Government of Canada by
Mr. Liu there should be taken into account the amount withheld from his
commissions but not remitted. This court's jurisdiction, insofar as it
is relevant to this case, is to hear and determine references and appeals on
matters arising under the Income Tax Act. Essentially in an appeal under the
Income Tax Act the question is the correctness of an assessment or
determination of loss. Here there is no issue with respect to the correctness
of the assessment. The question of amount of the balance of tax owing by a
taxpayer may be a matter within the jurisdiction of the Federal Court but
if that court sees the substantive issue in the same manner in which I do I
doubt that it could give the appellant any more relief than I can. (Emphasis
added.)
[43] Nor does this Court
have the power to give declaratory relief as sought by the Appellant in this
case. It may dispose of income tax appeals only in the manner laid down in
subsection 171(1) of the Income Tax Act.
[44] The decision of this
Court in Alameda Holdings Limited, supra, is not authority for the
position that a fin de non recevoir based on article 1457 of
the Civil Code of Québec can be granted by this Court since that
question was not disposed of by the Court. The Appellant's claim in this case
is basically an action against the Minister for damages resulting from the
alleged misconduct of the Minister's agents. The determination of civil
liability and damages is beyond the jurisdiction of this Court.
[45] For these reasons, I
conclude that the question of law stated by the Respondent must be answered in
the negative, that is, the Appellant cannot raise a fin de non recevoir
based on civil liability as a ground of appeal from an assessment of tax under
the ITA and an assessment of premiums under the EIA.
[46] The Respondent has asked that, in the event
that the answer to the question of law submitted on this motion is negative,
the Amended Notice of Appeal be struck out on the basis that it would therefore
no longer disclose any reasonable grounds for appeal. The test for determining
whether an action should be dismissed on this basis is known as the "plain
and obvious" test: it must be plain and obvious that the Appellant's
Amended Notice of Appeal discloses no reasonable grounds for appeal before it
can be struck out.
In Attorney General of Canada, Estey J. stated as follows at
page 740:
... On a motion such as this a court
should, of course, dismiss the action or strike out any claim made by the
plaintiff only in plain and obvious cases and where the court is satisfied that
“the case is beyond doubt” ….
[47] Having decided that
the Court does not have jurisdiction to rule on the only ground of appeal from
the assessments raised by the Appellant, it is plain and obvious that its
Amended Notice of Appeal discloses no reasonable ground for appeal and that it
has no chance of success. Therefore, the Amended Notice of Appeal will be
struck out.
[48] The Respondent not
having sought costs, no costs are awarded.
Signed at Ottawa,
Canada, this 5th day of December 2003.
Paris J.
on this 18th day
of March 2004.
Sophie Debbané, Revisor
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