Citation: 2015 TCC 125
Date: 20150519
Docket: 2014-4590(GST)APP
BETWEEN:
ADE
OLUMIDE,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS
FOR ORDER
Woods J.
I. Introduction
[1]
Ade Olumide has filed an application to the
Court for the following relief:
3. THE
NOTICE OF APPLICATION IS FOR:
4. Vacation
of about $10,000 in Court Costs tax assessments stemming from CRA refusals to
remedy wrongful information by CRA employee
5. Extension
of time to Appeal to Tax Court and extension of time to seek an order referring
the matter 2010 GST Rebate Application for about $16,000 back to the Minister
for reconsideration and reassessment. That the reconsideration would include an
application of the following CRA Manual tools (but not excluding any other tool
available to the Minister) to achieve a return of the GST Rebate
6. Refund Credit
7. Fairness Provisions for Excise Tax Act
8. Remissions
Order
9. No Fault
Settlement
10. Offset between GST Rebate and GST
11. 7C Amendment Letter
12. Due Date Extension For Reporting Period
13. Deadline Waiver To File Nob (Notice of Objection)
14. GHRAPS Due Date
15. Re-Auditing A Previously Audited Period
16. Voiding Or Reassessing The 2010 GST Reassessment
17. Discretion To Allow Statute Barred Refund
18. Discretion To Refund Or Reduce Tax Payable
19. Taxpayer Bill Of Right Promise To
Remedy Wrongful Information By CRA Employee
20. Costs
of Motion fixed at $10,000 (amount owed to CRA being collected through taxes)
21. Punitive
Costs at the discretion of the Court.
[2]
Two days before the above application was
scheduled to be heard, the respondent brought a motion for an Order to quash
the application, or in the alternative for an Order to quash subpoenas to
appear that were sent by Mr. Olumide to the Commissioner of the Canada
Revenue Agency (CRA) and a CRA auditor. These are my reasons with respect to the
respondent’s motion.
II. Court
costs
[3]
The first relief that Mr. Olumide seeks is the
vacation of court costs that were ordered against him by other courts in
proceedings that are related to the tax matter that is at issue. Mr. Olumide
submits that the total of the costs are approximately $10,000.
[4]
It is clear that this part of the application cannot
succeed because this Court does not have jurisdiction to deal with this matter.
[5]
Mr. Olumide is asking this Court to vacate
Orders for costs that were issued by other Courts. He submits that the Tax
Court has jurisdiction because the Orders were implemented by way of
assessments under the Excise Tax Act.
[6]
I disagree with this submission. First, Mr.
Olumide has not established that assessments under the Excise Tax Act
were issued in respect of the costs awarded by other Courts. Second, the
Minister has not been given the authority to make this type of assessment under
the Excise Tax Act. Finally, the Tax Court of Canada has not been given
jurisdiction over such matters.
[7]
The respondent filed an affidavit by a CRA appeals
officer which stated that no assessment had been issued in relation to court
costs, and that an amount owing as court costs with respect to related
proceedings in the Federal Court, the Federal Court of Appeal, the Ontario
Superior Court of Justice, and the Supreme Court of Canada was added to Mr.
Olumide’s GST account pursuant to subsection 313(4) of the Excise Tax Act
(Motion Record, Tab C).
[8]
Subsection 313(4) provides:
313(4). Court
Costs – If an amount is payable to Her Majesty in
right of Canada because of an order, judgment or award of a court in respect of
the costs of litigation relating to a matter to which this Part applies,
subsections 314(1) and (3) and sections 316 to 322 apply to the amount as if
the amount were a debt owing by the person to Her Majesty on account of tax
payable by the person under this Part.
[9]
The essence of s. 313(4) is to provide that court
costs payable to the respondent in relation to GST matters can be collected in
the same manner as tax owing under the Act. But court costs are not tax,
they are not deemed to be tax, and the Minister has no authority under the Excise
Tax Act to issue a tax assessment relating to such costs. Likewise, the Tax
Court of Canada has no jurisdiction with respect to such matters.
[10]
At the hearing, Mr. Olumide provided to the
Court two documents in support of his position (Ex. A-1). Neither of these
documents provides support that court costs were assessed by the Minister.
[11]
It is clear that the application by Mr. Olumide
as it relates to court costs has no chance of success.
III. Applications
to extend time
A. Background
[12]
Mr. Olumide also seeks extensions of time to
appeal to this Court and to seek an Order referring the matter of “2010 GST
Rebate Application for about $16,000” back to the Minister for reconsideration
and reassessment.
[13]
Two extensions of time have been requested. As
far as I can tell, each of these requests relates to a GST return of net tax
that was filed in 2010 for the 2009 calendar year. My understanding is that the
reference to a 2010 GST Rebate Application is a reference to the relief that
Mr. Olumide sought by filing the net tax return. The return was the subject of
an assessment issued under the Excise Tax Act by notice dated April 14,
2010 (Motion Record, Tab C).
[14]
The Crown submits that the application to extend
time has no chance of success because Mr. Olumide has not satisfied a
pre-condition that is necessary to appeal to this Court, namely, the filing of
a valid notice of objection.
[15]
The pre-condition is set out in section 306 of
the Excise Tax Act, which reads:
306. Appeal – A
person who has filed a notice of objection to an assessment under this
Subdivision may appeal to the Tax Court to have the assessment vacated or a
reassessment made after either
(a) the Minister has confirmed
the assessment or has reassessed, or
(b) one
hundred and eighty days have elapsed after the filing of the notice of
objection and the Minister has not notified the person that the Minister has
vacated or confirmed the assessment or has reassessed,
but no appeal under this section may be instituted after the
expiration of ninety days after the day notice is sent to the person under
section 301 that the Minister has confirmed the assessment or has reassessed.
[Emphasis
added]
[16]
In order to satisfy this pre-condition, a valid
notice of objection must be filed. The deadline for filing a notice of
objection is 90 days from the time that the notice of assessment is sent, and the
deadline is strict unless an extension of time is granted. The relevant
provision is s. 301(1.1) of the Act which reads:
301.(1.1)
Objection to assessment – Any person who has been
assessed and who objects to the assessment may, within ninety days after the
day notice of the assessment is sent to the person, file with the Minister a notice
of objection in the prescribed form and manner setting out the reasons for the
objection and all relevant facts.
[17]
It is not in dispute that the assessment was
sent on or around the date on the notice, which is April 14, 2010. Accordingly,
the deadline for filing a notice of objection was a further 90 days, which was
on or around July 13, 2010.
[18]
The Crown submits that Mr. Olumide did not file
a notice of objection until July 10, 2013, which is almost three years after
the deadline (Motion Record, Tab C).
[19]
It is worth noting that Mr. Olumide also filed a
notice of objection on October 18, 2011. This objection related to a different
assessment, but in any event the objection was filed more than 90 days past the
date of the notice of assessment issued on April 14, 2010. The notice of objection
was also filed three months past the deadline to apply for an extension of
time.
[20]
Mr. Olumide submits that an objection was filed
on time because he made it clear to the CRA auditor that he did not agree with
the assessment. At the hearing, Mr. Olumide stated that he could not remember
whether these were only verbal communications. In written submissions received
after the hearing, Mr. Olumide submitted that the communications were both
verbal and in writing.
[21]
I accept that Mr. Olumide expressed his disagreement
with the assessment orally to the auditor. However, there is not sufficient
evidence to establish that there was any form of objection in writing prior to
the filing deadline.
[22]
Mr. Olumide submits that his method of communicating
disagreement with the assessment is an acceptable notice of objection because a
notice of objection does not have to be made in a specific manner.
[23]
I disagree with this submission. Subsection
301(1.1) of the Act provides for a formal method of filing a notice of
objection. In particular, it must be filed in prescribed form and manner. This
provision reads:
301.(1.1)
Objection to assessment – Any person who has been
assessed and who objects to the assessment may, within ninety days after the
day notice of the assessment is sent to the person, file with the Minister a
notice of objection in the prescribed form and manner setting out the reasons
for the objection and all relevant facts.
[24]
It is clear from the language used in s.
301(1.1) that the filing of a notice of objection is intended to be a formal
procedure. Parliament did not intend that an informal expression of
disagreement communicated to a CRA auditor would satisfy this requirement.
[25]
In this regard, I would note that the term “prescribed” is defined
in subsection 123(1) of the Excise Tax Act to mean, in the case of a
form or the manner of filing a form, “authorized
by the Minister.” The form and manner authorized
by the Minister in this case is found on Form GST 159 published by the CRA. The
form states that the notice of objection should be filed by mailing it to
either the Eastern or Western Intake Centre, as specified on the current Form
159, or by sending it to the Chief of Appeals at the nearest tax services
office or tax centre, as under the previous version of Form 159.
[26]
Further, the requirement that the notice of
objection be “sent” implies that it must be in
writing. This is also implied by the term “file”
in s. 301(1.1). The Oxford English Dictionary (2nd edition) defines
the term “file” as “to
place (documents) on a file” and, significantly,
“to place (a document) in a due manner among the
records of a court or public office.”
[27]
Finally, if there were any doubt that the filing
requirements set out in s. 301(1.1) are formal requirements, the Federal
Court of Appeal has confirmed that they are: Pereira v. The Queen, 2008
FCA 264.
[28]
I conclude that Mr. Olumide is precluded from
instituting an appeal to this Court in relation to the assessment made by
notice dated April 14, 2010.
[29]
As mentioned earlier, two extensions have been
sought. The second extension request does not refer to an assessment. Mr.
Olumide seeks an extension of time to “seek an
order referring the matter 2010 GST Rebate Application for about $16,000 back
to the Minister for reconsideration and reassessment.”
[30]
This request also has no chance of success. The
only procedure that is available in this Court for relief in reference to a GST
return or a Rebate Application is to institute an appeal from an assessment. The
Court does not have blanket jurisdiction to issue orders such as the one
requested.
[31]
Mr. Olumide forcefully submits that the
application should be allowed to proceed because the CRA deliberately misled
him in their response to his objections. He submits that this Court has the
discretion to allow the application and should do so in these egregious
circumstances.
[32]
I do not agree with this submission. The Tax
Court of Canada has no authority to ignore the legislative requirement that an
appeal may not be instituted unless a valid notice of objection has been filed.
It does not matter if there has been misconduct on the part of the CRA (Ereiser
v. The Queen, 2013 FCA 20).
[33]
Mr. Olumide invokes fundamental rights of
Canadians in the Charter of Rights and Freedoms and the Bill of Rights. He
submits that the treatment of him by the CRA amounts to cruel and unusual
treatment and punishment.
[34]
I disagree with these submissions. Even assuming
that the actions by the CRA amount to a Charter breach, the Tax Court of Canada
does not have the authority to grant relief on this basis. Parliament has
provided other avenues for relief, such as an application for a remission
order, which I understand was done in this case.
[35]
Finally, I would comment that Mr. Olumide
attempted to file several documents concerning this matter after the hearing.
One of these appears to be a motion record that seeks an Order declaring that
section 301(1.1) is constitutionally invalid. If subsection 301(1.1) is found
to be invalid, then arguably there are no formal requirements regarding the filing
of a notice of objection.
[36]
I did not consider this argument, or any new
arguments raised by Mr. Olumide after the hearing. Parties do not have the
right to raise new issues at their discretion after the hearing. Such a right
would lead to an unacceptable waste of scarce judicial resources.
[37]
In this case, Mr. Olumide was given the
opportunity to respond to the respondent’s motion at the hearing, and at his
request he was given the opportunity to make a further submission after the hearing
concerning the documents that had been filed at the hearing. In my view, it is
not appropriate in this case to permit Mr. Olumide to raise new issues after
the hearing.
IV. Conclusion
[38]
It is clear that Mr. Olumide’s application has
no chance of success. In the particular circumstances of this case, I conclude
that it is appropriate to grant the Crown’s motion to quash the application on
that ground.
[39]
An Order to quash the application by way of a
preliminary motion rather than having a full hearing of the application is an
efficient use of Court resources for this particular matter. I note in
particular that Mr. Olumide issued a subpoena to the Commissioner of the CRA
which required him to appear at the application. I agree with the respondent
that the Commissioner’s evidence would not have a bearing on the outcome of
this application. In addition, Mr. Olumide attempted to file numerous documents
with the Registry after the hearing of the motion. It would be an abuse of
Court resources to prolong this matter.
[40]
In the result, the respondent’s motion is
granted, and the application by Mr. Olumide for extensions of time and to
vacate court costs is quashed. It is not necessary that I deal with the
respondent’s alternative submission regarding the subpoenas.
[41]
The Crown has not sought costs and none will be
ordered.
Signed
at Toronto, Ontario this 19th day of May 2015.
“J.M. Woods”
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