Florida Ceilings Inc. v. The Queen, 2003 TCC 30

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Motion heard on January 13, 2003, at Toronto, Ontario,

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ORDER

          UPON motion by counsel for the Respondent for an Order dismissing the appeal herein for failure of the Appellant to deliver a Notice of Objection to the Notice of (re)Assessment appealed from;

          AND UPON reading the affidavits of Sylvia Faulkner and Michael Mahoney, filed;

          AND UPON hearing counsel for the parties;

          AND whereas counsel for the Respondent requested costs;

          IT IS ordered that the motion to dismiss is granted, the purported appeal is quashed, and costs of 50 per cent of the taxed costs are awarded to the Respondent.

Signed at Toronto, Ontario, this 10th day of February, 2003.

J.T.C.C.

REASONS FOR ORDER

Sarchuk J.

[1]      This is a motion by the Respondent for an order dismissing the Appellant's appeal on the grounds that:

1.          The Notice of Appeal indicates that the Appellant was assessed in respect of the period ending March 31, 1995.

2.          A Notice of (re)Assessment dated July 12, 1995 was issued in respect of the reporting period 91-04-01 to 95-03-31 (the "Reporting Period").

3.          No Notice of Objection was filed in respect of the Notice of (re)Assessment.

4.          The Appellant is beyond the time period for Objections to the Notice of Assessment.

5.          The document titled Notice of (re)Assessment dated December 4, 2001 is not in fact a Notice of (re)Assessment, rather is a statement of the amount outstanding. Further the document is not in respect of the Reporting Period, and in any event assesses no tax.

[2]      Upon reading the affidavits of Sylvia Faulkner and Michael Mahoney and hearing counsel for the parties, I concluded that the document relied upon by the Appellant was not a "Notice of Reassessment".[1] Thus the only valid Notice of Reassessment is the one dated July 12, 1995 in respect of the period April 1, 1991 to March 31, 1995. Since no Notice of Objection was filed and since the Appellant is beyond the time period allowed for objections - no appeal may be brought before this Court.

[3]      Furthermore, I feel obliged to observe even if I had concluded that the document was in fact a reassessment, the appeal could not be entertained by this Court because no matter how one might choose to read it no other conclusion can be reached other than it is a "nil" assessment from which there is no appeal. Accordingly, an Order quashing the purported appeal is granted.

[4]      Counsel for the Respondent seeks payment of costs in this matter. On behalf of the Appellant it is argued that given the circumstances and the conduct of Canada Customs and Revenue Agency (CCRA) which led to the filing of the Notice of Appeal, costs are not warranted.

[5]      This is somewhat of an unusual situation. On the one hand, we would not be here today if the Collections Division of CCRA had not, in the words of Ms. Faulkner in her affidavit, "inadvertently generated and issued" this document. While the carelessness of the individual responsible is something I must take into account, it is equally correct to conclude that a reasonably careful consideration of this document should have made it clear that it was not a reassessment.

[6]      Paragraph 147(5)(b) of the Rules of the Tax Court of Canada (General Procedure) provides:

Subject to the provisions of the Act, the Court shall have full discretionary power over the payment of the costs of all parties involved in any proceeding, the amount and allocation of those costs and determining the persons by whom they are to be paid.

...

(5)         Notwithstanding any other provision in these rules, the Court has the discretionary power,

...

(b)         to award a percentage of taxed costs or award taxed costs up to and for a particular stage of a proceeding, ...

[7]      Given the facts before me, I have concluded that an award of 50 per cent of taxed costs would be appropriate in these circumstances.

Signed at Toronto, Ontario, this 10th day of February, 2003.

J.T.C.C.