Citation:
2014 TCC 227
Date: 20140717
Docket: 2012-1470(GST)G
BETWEEN:
PETER
V. ABRAMETZ,
Appellant,
and
HER
MAJESTY THE QUEEN,
Respondent.
REASONS
FOR ORDER
Graham J.
[1]
Peter Abrametz was assessed under subsection
323(1) of the Excise Tax Act (the “ETA”) as the sole director of
Mada Construction Company Ltd. in respect of Mada’s outstanding GST, interest
and penalties (the “Original Assessment”). Mr. Abrametz appealed the Original
Assessment to this Court. His sole ground of appeal was that the underlying
amount of GST, interest and penalties allegedly owed by Mada had been
incorrectly calculated by the Minister of National Revenue. Justice Sheridan
dismissed Mr. Abrametz’s appeal. Mr. Abrametz
appealed that dismissal to the Federal Court of Appeal. His appeal was allowed
and the matter was referred back to the Minister for reassessment on the basis
that six amounts totalling $166,250 “were loan proceeds and inter-bank
transfers, none of which should have been subject to GST”. Neither the Respondent nor Mr. Abrametz appealed the decision of
the Federal Court of Appeal. The Minister reassessed Mr. Abrametz with the
intention of giving effect to the decision of the Federal Court of Appeal (the
“Resulting Reassessment”). Mr. Abrametz has now appealed the Resulting
Reassessment to this Court.
[2]
The Respondent seeks an order under Rule 53 of
the Tax Court of Canada Rules (General Procedure) striking out
paragraphs 8, 9, 13(i), 13(iv), 14, 16 and 17 of the Notice of Appeal on
the basis that Mr. Abrametz is estopped from arguing that the underlying
assessment against Mada was incorrect, that he was duly diligent or that the
pre-conditions under subsection 323 of the ETA were not met at the time
that the Original Assessment was issued. In the alternative, the Respondent
seeks an order striking out those paragraphs on the basis that allowing Mr.
Abrametz to make those arguments would amount to an abuse of process.
[3]
The Respondent also seeks, pursuant to Rule
58(1)(a), rulings that:
(a)
the Minister was not required to repeat any
steps contained in section 323 when he issued the Resulting Reassessment;
(b)
the Resulting Reassessment made the changes
ordered by the Federal Court of Appeal; and
(c)
the issues raised by Mr. Abrametz with respect
to the payment of his tax debt or that of Mada are outside the jurisdiction of
this Court.
[4]
The Respondent also seeks leave to introduce
evidence on the Rule 58 Motion.
[5]
Finally, if I find in favour of the Respondent
on the Rule 53 and 58 Motions, the Respondent seeks an order dismissing the
Appeal on the grounds that there are no issues left to be tried.
[6]
Due to the confusing nature of Mr. Abrametz’s
pleadings, it is somewhat difficult to decipher the exact basis upon which he
has appealed the Resulting Reassessment. As a consequence, it is not possible
to fully consider the issues that the Respondent seeks to have determined
without first delving into the basis of Mr. Abrametz’s appeal.
[7]
Accordingly, I will first determine the basis of
Mr. Abrametz’s appeal, then determine whether the Respondent is entitled to
introduce evidence on this Motion, then turn to the specific issues that the
Respondent has raised in this Motion and finally, if applicable, consider
whether Mr. Abrametz’s appeal should be dismissed with costs.
What is the Basis of the Appeal?
[8]
The exact basis upon which Mr. Abrametz is
appealing is not entirely clear. The issues set out in the Notice of Appeal do
not match the reasons that Mr. Abrametz intends to rely on in the Notice of
Appeal. The description of his positions both in the Notice of Appeal and the
Appellant’s Written Representations are often vague and intertwine issues in
such a way as to make it difficult to determine exactly what Mr. Abrametz is
disputing. Therefore, for the purpose of this Motion, in determining the issues
upon which Mr. Abrametz is appealing, I am going to give the widest possible
reading to the Notice of Appeal and the Appellant’s Written Representations.
Based on that reading, I conclude that Mr. Abrametz is raising five distinct
grounds for appeal.
Underlying Assessment Argument
[9]
The first ground for appeal is that Mr. Abrametz
submits that the underlying assessment of Mada’s GST liability was incorrect. There is no further detail provided in respect of this argument in
either the Notice of Appeal or the Appellant’s Written Representations. For the
purposes of this Motion, I will assume that Mr. Abrametz wishes to challenge
the entire basis upon which Mada’s underlying GST was determined. I will refer
to this argument as the “Underlying Assessment Argument”.
Original Assessment Pre-Conditions Argument and Resulting
Reassessment Pre‑Conditions Argument
[10]
The second ground for appeal relates to various
pre-conditions set out in subsections 323(2), (5) and (6). It is clear that Mr.
Abrametz is appealing on the basis that the Resulting Reassessment should be
vacated because these pre‑conditions were not met. However, it is not entirely clear whether his position is that the
pre-conditions were not met at the time that the Original Assessment was issued
or at the time that the Resulting Reassessment was issued or both. For the
purposes of this Motion, I will assume that he is arguing that all of the
pre-conditions were not met at either of those two times. I will refer to the
argument that the pre-conditions were not met at the time that the Original
Assessment was issued as the “Original Assessment Pre-Conditions Argument” and
the argument that the pre-conditions were not met at the time that the
Resulting Reassessment was issued as the “Resulting Reassessment Pre‑Conditions
Argument”.
Due Diligence Argument
[11]
The third ground for appeal relates to
subsection 323(3). Mr. Abrametz is appealing on the basis that he exercised due
diligence as a director of Mada. I
will refer to this argument as the “Due Diligence Argument”.
Resulting Reassessment Argument
[12]
The fourth ground for appeal relates to the
adjustment made in the Resulting Reassessment. Mr. Abrametz submits that, in
issuing the Resulting Reassessment, the Minister failed to reassess in
accordance with the Judgment of the Federal Court of Appeal. I will refer to this argument as the “Resulting Reassessment
Argument”.
Payment Argument
[13]
The fifth ground for appeal is described in
paragraph 13(iii) of the Notice of Appeal as follows:
Were the sums in dispute,
having been imputed to the income of Peter V. Abrametz, covered in
taxes paid by Peter V. Abrametz, or contained within his personal assessment?
[14]
It is unclear what the foregoing means. The
issue is described further at paragraphs 11 and 18 of the Notice of Appeal as
follows:
[11] The corporate
assessment was charged against Peter V. Abrametz on his personal assessment.
…
[18] The Appellant intends to further submit that the tax liability
of MADA Construction was discharged by a personal assessment of the same and
transfer of the same against the personal income tax of Peter V. Abrametz,
which personal income tax has been duly paid.
[15]
These descriptions do nothing to clarify the
issue. There is a heading in the Appellant’s Written Representations which reads
“THE TAX COURT’S JURISDICTION OVER COLLECTION MATTERS”. The paragraphs that
follow that heading have nothing whatsoever to do with either the Court’s
jurisdiction or Mr. Abrametz’s personal income tax but rather deal with the pre‑conditions
in section 323. There
is another heading in the Appellant’s Written Representations which reads “THE
TAX COURT JURISDICTION OVER COLLECTION MATTERS”. The paragraph that follows that
heading simply states that:
It is respectfully submitted that the Tax Court has a wide and broad
jurisdiction and has the legal status to consider all aspects of the appeal,
including the efficacy of the Minister’s Certificate, the legality of the Writs
of Fieri Facia, and all matters relating to collection of tax owing by the
taxpayer.
[16]
The issues described in the above paragraph
relate primarily to the section 323 pre-conditions. The simple statement
that the Court has “wide and broad jurisdiction and has the legal status to
consider … all matters relating
to collection of tax” does nothing to clarify what Mr. Abrametz meant in
paragraphs 11, 13(iii) and 18 of the Notice of Appeal.
[17]
For the purposes of this Motion, in order to
give as broad an interpretation as possible to this fifth ground of appeal, I
will treat the fifth ground of appeal as being a challenge as to whether Mr.
Abrametz’s liability was reduced as a result of Mada’s GST obligations being
paid, in full or in part, by Mr. Abrametz or any other person, directly or
indirectly, by any means whatsoever either before the Original Assessment was
issued, after the Resulting Reassessment was issued or between those two times.
I will refer to this argument as the “Payment Argument”.
Should the Respondent Be Granted Leave to Introduce Evidence?
[18]
There is no restriction against either party
leading evidence on a motion under Rule 53. Pursuant to Rule 58(2)(a), evidence
may not be lead on a motion under Rule 58(1)(a) without consent of the opposing
party or leave of the Court. Both parties seek leave to introduce evidence and
both filed affidavit evidence to support their positions. The Respondent did
not oppose Mr. Abrametz’s introducing evidence by way of affidavit.
[19]
In his written representations, Mr. Abrametz
argued that I should not permit the Respondent to introduce evidence. Mr. Abrametz
stated his position as follows at paragraph 17:
17. … to allow the
Applicant [sic should presumably read Respondent] to lead evidence at
this stage would have the following effects:
i) preclude the Applicant (Appellant) from effectively
having an appeal;
ii) effectively precluding the Appellant from excising [sic]
his right to examine and cross-examine witnesses and documents prepared by the
Respondent, Her Majesty the Queen.
18. It is respectfully submitted that the evidence that the
Respondent attempts to lead into evidence is not complete, that the Respondent
has selectively brought forward evidence to this Court, and that the principal
evidence dealing with the primary issues dealt with on the issues of the
Appeal, as we see them, have not been brought forward by Canada.
[20]
I will deal with each of those points in turn:
(a) Appellant
Precluded From Having An Appeal: I am unable to see how my permitting the
Respondent to introduce evidence could preclude Mr. Abrametz from having an
appeal unless the evidence led by the Respondent were such that it resulted in
my ruling that Mr. Abrametz’s appeal should be dismissed. If that is the case, Mr. Abrametz
is simply arguing that the Respondent should not be allowed to lead evidence
because it might cause Mr. Abrametz to lose the Motion. That is not a
convincing argument.
(b) Loss
of Right to Cross-Examine: Mr. Abrametz raised this issue previously in a
request to cross-examine the Respondent’s affiant. I denied that request in my
Order dated March 10, 2014. My basis for doing so remains unchanged. The affidavit
filed by the Respondent does little more than attach the following documents as
exhibits:
• excerpts
from the Respondent’s Questions on Written Examination for Discovery;
• excerpts
from the Appellant’s Answers on Written Examination for Discovery;
• excerpts
from the Respondent’s Supplementary Questions on Written Examination for
Discovery;
• excerpts
from the Appellant’s Supplementary Answers on Written Examination for
Discovery;
• a
copy of Justice Sheridan’s decision in Mr. Abrametz’s appeal; and
• a
copy of the Federal Court of Appeal decision in Mr. Abrametz’s appeal.
I can see nothing in the above materials that would require cross‑examination.
If Mr. Abrametz felt that the excerpts from the Written Examinations for
Discovery did not fairly reflect the questions posed by the Respondent or his
responses he could easily have included additional excerpts in his affidavit.
The fact that he did not do so and that he did not even introduce any evidence
in his affidavit that would in any way counter these excerpts leaves me to
conclude that his claim to need an opportunity to cross-examine the
Respondent’s affiant is hollow.
(c) Incomplete
or Selective Evidence: Mr. Abrametz makes nothing more than bald assertions
that the evidence brought forward by the Respondent is incomplete or selective.
He does not specify what evidence is missing. As stated above, Mr. Abrametz
could easily have included additional excerpts from the Written Examinations
for Discovery in his affidavit if he felt it was necessary. Mr. Abrametz’s
concern that the Respondent did not submit evidence dealing with the primary
issues is similarly flawed. What Mr. Abrametz is really saying is that he
thinks the Appeal should be determined based on the issues that he has
identified and that he wants the Respondent to focus its evidence on those
issues rather than on attacking the issues themselves. If the Respondent’s
Motion fails, Mr. Abrametz will have a full opportunity at trial to bring forth
the evidence that he needs to address the issues that he has identified.
[21]
In addition to the foregoing, I note that Mr.
Abrametz previously agreed that evidence could be introduced on the Motion. On
November 4, 2013, the parties wrote to the Court to provide an update on the
status of the Appeal. Mr. Abrametz signed that letter. The second
paragraph of that letter states:
The parties agree, however, that such a motion could be handled
efficaciously by way of a motion in writing in accordance with General Procedure
Rule 69, and therefore request (in reliance on Rule 12) that the Court permit
us to proceed with such a motion on the following schedule: that the
respondent file its motion (including any supporting evidence and
representations) on or by January 30, 2014 and the appellant file its [sic]
response (including any supporting evidence and representations) on or
by March 14, 2014.
[emphasis added]
[22]
Based on all of the foregoing, leave to introduce
affidavit evidence in the form already filed is granted to both parties.
Does Issue Estoppel Prevent Mr. Abrametz From Making
Various Arguments?
[23]
The Respondent submits that Mr. Abrametz should
be estopped from making the Underlying Assessment Argument, the Original
Assessment Pre‑Conditions Argument and the Due Diligence Argument and
accordingly seeks to strike various portions of the Notice of Appeal.
[24]
Three conditions must be met for issue estoppel
to apply:
(a) the
issue must be the same one that has been decided in the previous decision;
(b) the previous
decision must have been final; and
(c) the
parties to the both proceedings must be the same or be their privies.
[25]
The decision of the Federal Court of Appeal in
Mr. Abrametz’s appeal was a final decision. The parties to that appeal are
identical to the parties in the current appeal. Therefore, the only question
that remains is whether the issues on the current appeal are the same as the
ones that were decided in the previous appeal.
[26]
The global issue in the two appeals is
identical. Mr. Abrametz was and is disputing a director’s liability assessment
in respect of Mada’s GST obligations for a specific set of reporting periods.
The only thing that has changed on a global basis is that the Resulting
Reassessment is slightly smaller than the Original Assessment as a result of
the decision of the Federal Court of Appeal. There is no question that the
specific issues in the current appeal are not the same as those in the original
appeal.
However, the Federal Court of Appeal has held that the fact that a judgment
does not “extend to all of the issues that … could have been raised in the earlier proceedings in connection
with the appellant’s cause of action” does not mean that issue estoppel cannot
apply. Similarly,
in a case very comparable to Mr. Abrametz’s, Justice Woods held that issue
estoppel applied to a GST directors liability appeal where the director could
have raised the relevant issues in the original appeal. Based on the foregoing, I conclude that the three conditions for
issue estoppel have been met.
[27]
The Court has limited discretion to ignore issue
estoppel in situations where it would result in an injustice. This is not one
of those cases. Mr. Abrametz has not provided any explanation why an
injustice would result. I am not aware of anything that would have prevented Mr.
Abrametz from raising the Original Assessment Pre-Conditions Argument, the Due
Diligence Argument or the balance of the Underlying Assessment Argument at
trial. In fact, the trial transcript indicates that, at the opening of the
trial, Mr. Abrametz abandoned other issues raised by him in his Notice of
Appeal. Furthermore,
Mr. Abrametz was represented by counsel in his original trial. He is also a
lawyer himself and is thus presumably familiar with the concept of issue
estoppel and the corresponding need to address all relevant issues at trial.
[28]
Based on all of the foregoing, the Respondent’s Motion
to strike the specified portions of the Notice of Appeal is granted.
Abuse of Process
[29]
In light of my conclusions regarding issue
estoppel it is unnecessary for me to address the Respondent’s alternative
argument regarding abuse of process.
Question of Law – Result Reassessment Pre-Conditions
Argument
[30]
The Respondent would like me to make a
determination under Rule 58(1)(a) of the question of law of whether it is
necessary for the Minister to meet various pre-conditions set out in sections
323 before issuing a reassessment pursuant to an Order of the Federal Court of
Appeal. In my view, this is an appropriate question of law for me to consider
under Rule 58(1)(a). If I were to answer the question in the manner that the
Respondent wishes me to, it would mean that Mr. Abrametz had no hope of
succeeding on the Resulting Reassessment Pre-Conditions Argument. Eliminating
that argument would have the effect of substantially shortening the proceedings
and thus saving both parties substantial costs.
[31]
In the Resulting Reassessment Pre-Conditions
Argument Mr. Abrametz focuses on subsections 323(2), (5) and (6). I will deal the
Respondent’s question of law as it relates to each of these subsections in
turn.
Subsection
323(2)
[32]
Subsection 323(2) states that a director is not
liable under subsection 323(1) unless one of three pre-conditions have
been met. In simple terms, those pre-conditions relate to evidence of the inability
of the underlying corporation to pay its GST obligations. It appears that Mr.
Abrametz intends to argue that the Resulting Reassessment should be vacated
because one of the three pre-conditions was not met before it was issued.
[33]
If the Minister believes that one of the
pre-conditions in subsection 323(2) has been met and that a director is liable
under subsection 323(1), the Minister may issue an assessment under subsection
323(4). If a director appeals a director’s liability assessment and the Court
orders the Minister to reassess the director to reduce his or her liability,
the Minister does not, once again, have to satisfy one of the pre-conditions in
subsection 323(2) before issuing the reassessment. The pre-conditions in
subsection 323(2) are pre-conditions to liability, not pre-conditions to
assessment. The Federal Court of Appeal did not, as Mr. Abrametz contends,
vacate the Original Assessment leaving the Minister back at square one with no
determination of liability but rather the Court itself determined the director’s
liability and ordered the Minister to reassess on that basis.
[34]
Based on the foregoing, I make a determination
of law that it is not necessary for the Minister to meet one of the three
pre-conditions set out in subsection 323(2) prior to issuing a court ordered reassessment
under subsection 323(4).
Subsection
323(5)
[35]
Unlike subsection 323(2) which limits the
circumstances in which a director can be found liable, subsection 323(5) limits
the circumstances in which a director can be assessed. Under subsection 323(5),
a director who would otherwise be liable cannot be assessed more than two years
after he or she last ceased to be a director of the underlying corporation. It
appears that Mr. Abrametz intends to argue that he cannot be reassessed
because he ceased to be a director more than 2 years before the Resulting
Reassessment was issued.
[36]
Subsection 123(1) of the ETA states that
an assessment includes a reassessment. Therefore, at first glance, subsection
323(5) would appear to prevent the Minister from issuing a reassessment of any
amount under section 323 to a director who had last ceased to be a
director more than 2 years ago. However, this conclusion is not supported by a
closer reading of the relevant provisions. Subsection 323(5) creates a statute-barred
period for assessments under subsection 323(1). The equivalent statute-barred
periods for general assessments under section 296 of the ETA is found in
subsection 298(1). Paragraph 298(3)(a) states that the statute-barred
periods set out in subsection 298(1) do not apply to reassessments made to
give effect to decisions on appeals. Subsection 323(4) states that, the
provisions of section 298 apply, with such modifications as the circumstances
require, to assessments under subsection 323(4). Therefore paragraph 298(3)(a)
prevents the 2 year limitation period in subsection 323(5) from applying to a
reassessment issued under subsection 323(4) pursuant to a court order. Any interpretation of
subsection 323(5) other than the foregoing would render the appeal process
moot for any director who had ceased to be a director more than 2 years before
the Tax Court of Canada issued judgment in his or her appeal as the Minister
would be statute-barred from reassessing the director to give effect to a court
order resulting from a successful appeal. Parliament simply cannot have
intended such an absurd result.
[37]
Based on the foregoing, I make a determination
of law that subsection 323(4) causes paragraph 298(3)(a) to apply
to prevent the 2 year statute-barred period in subsection 323(5) from applying
to a court ordered reassessment issued under subsection 323(4).
Subsection 323(6)
[38]
Subsection 323(6) puts a cap on the amount of a
corporation’s liability that the Minister can collect from a director. The cap
is the amount set out in the certificate that the Minister may register to meet
the pre-condition in paragraph 323(2)(a). It is unclear whether Mr.
Abrametz intends to argue that subsection 323(6) has been breached because the
Minister did not obtain a new certificate prior to issuing the Resulting
Reassessment or because the Minister is attempting to collect an amount greater
than the amount set out in the certificate that was obtained prior to issuing
the Original Assessment. If it is the former argument, then it will fail for
the reasons described in respect of subsection 323(2) above. If it is the
latter argument, then it will fail for the reasons described below regarding
the Payment Argument. In either case, there is no need for me to issue a
specific determination of law with respect to subsection 323(6).
Question of Law – Payment Argument
[39]
The Respondent would like me to make a
determination under Rule 58(1)(a) of the question of law of whether the
Court has jurisdiction to hear the Payment Argument. In my view, this is an
appropriate question of law for me to consider under Rule 58(1)(a). If I were
to answer the question in the manner that the Respondent wishes me to, it would
have the effect of substantially shortening the proceedings and thus saving both
parties substantial costs.
[40]
To recap, the Payment Argument relates to
whether the Court has jurisdiction to consider whether the amount for which a
director is liable under subsection 323(1) has been reduced as a result of the
underlying corporation’s GST obligations being paid, in full or in part, by
that director or any other person, directly or indirectly, by any means
whatsoever at any time whatsoever. This argument relates to the collection of
tax rather than the determination of tax. The jurisdiction to consider
collection matters rests with the Federal Court, not this Court.
[41]
Based on the foregoing, I make a determination
of law that the Court does not have jurisdiction to consider whether the amount
for which a director is liable under subsection 323(1) has been reduced as a
result of the underlying corporation’s GST obligations being paid, in full or
in part, by that director or any other person, directly or indirectly, by any
means whatsoever at any time whatsoever.
Question of Fact – Resulting Reassessment Argument
[42]
The Respondent would like me to make a
determination under Rule 58(1)(a) of the question of fact of whether the
Resulting Reassessment made the changes ordered by the Federal Court of Appeal.
In my view, this is an appropriate question of fact for me to consider under
Rule 58(1)(a). If I were to answer the question in the manner that the
Respondent wishes me to, it would mean that Mr. Abrametz had no hope of
succeeding on the Resulting Reassessment Argument. Given my conclusion above, the
Resulting Reassessment Argument is the only argument remaining for Mr. Abrametz
to make. Eliminating that argument would have the effect of entirely
eliminating the balance of the proceedings and thus saving both parties
substantial costs.
[43]
Mr. Abrametz contends in his Notice of Appeal
that the Resulting Reassessment failed to reduce the amount of net tax assessed
against him by the appropriate amount. The Federal Court of Appeal ordered the
Minister to reassess on the basis that $166,250 worth of deposits made to
Mada’s bank account were loan proceeds and bank transfers and thus not subject
to GST. Mr. Abrametz believes that this should have resulted in a
reduction in the net tax assessed against him equal to $11,637.50. He
calculates this figure by multiplying $166,250 by 7% GST.
[44]
Mr. Abrametz agrees that the Resulting
Reassessment adjusted the net tax assessed against him by $10,876.17. The Respondent submits that this figure was calculated by
multiplying the $166,250 by 7/107. This method of calculation is one that would
be used to determine the amount of GST that was included in an amount if the
amount were presumed to be a GST included total. Mr. Abrametz’s own
accountant testified at trial that this was the method used by the auditor to
determine the GST.
[45]
At paragraph 1(u) of the Answers, Mr. Abrametz
agrees that in assessing Mada, the Minister assumed that each deposit made to
Mada’s bank account “was comprised of consideration for taxable supplies made
by [Mada] and 7% GST on that consideration”. It follows that if Mr. Abrametz
agrees that the underlying assessment was calculated in this manner then the
method that should be used to reverse the GST on the $166,250 worth of deposits
made to Mada’s bank account was the method actually used by the Minister, not
the method proposed by Mr. Abrametz.
[46]
Based on the foregoing, I make a determination
of fact that the Minister reassessed Mr. Abrametz in accordance with the
decision of the Federal Court of Appeal.
Should the Appeal Be Dismissed?
[47]
The only arguments that have not been struck
from the Notice of Appeal as a result of the estoppel issue are the Resulting
Reassessment Argument, the Resulting Reassessment Pre-Conditions Argument and
the Payment Argument. The foregoing determination of fact has made it clear
that Mr. Abrametz has no hope of succeeding on the Resulting Reassessment
Argument and the foregoing determinations of law have made it clear that he has
no hope of succeeding on the Resulting Reassessment Pre-Conditions Argument and
the Payment Argument.
[48]
As a result, the Respondent would like me to
dismiss the Appeal. The Motion does not state the Rule pursuant to which the
Respondent wants me to do so. Presumably the Respondent is relying on Rule
58(1)(b) as it read at the time the Motion was brought. That Rule allows me to
dismiss an appeal if it discloses no reasonable grounds for appeal. However,
Rule 58(2)(b) states that no evidence may be lead on a motion under Rule
58(1)(b). The Respondent led evidence in support of its motion for a
determination of a question of fact. It would be a perversion of the Rules if,
having made a determination of fact that favours the Respondent using evidence
put forward by the Respondent, I now concluded that I could, relying on my
determination of fact (as opposed to the evidence that lead to it) find that Mr.
Abrametz had no reasonable grounds for appeal and dismissed his appeal. Accordingly,
the Respondent’s Motion to have the Appeal dismissed is denied.
[49]
Despite the foregoing, I caution Mr. Abrametz in
the strongest terms possible that, if, in the face of my conclusion that he has
no chance of succeeding at trial, he nonetheless chooses to take this matter to
trial, I anticipate that the Judge that hears the trial will give significant
weight to that poor choice when awarding costs.
Summary
[50]
In summary:
(a) paragraphs
8, 9, 13(i), 13(iv), 14, 16 and 17 of the Notice of Appeal are hereby struck;
(b) the
Court makes a determination of law that it is not necessary for the Minister to
meet the pre-conditions set out in subsection 323(2) of the ETA prior to
issuing a court ordered reassessment under subsection 323(4);
(c) the
Court makes a determination of law that subsection 323(4) causes paragraph
298(3)(a) of the ETA to apply to prevent the two year statute-barred
period in subsection 323(5) from applying to a court ordered reassessment
issued under subsection 323(4);
(d) the
Court makes a determination of law that the Court does not have jurisdiction to
consider whether the amount for which a director is liable under subsection
323(1) has been reduced as a result of the underlying corporation’s GST
obligations being paid, in full or in part, by that director or any other
person, directly or indirectly, by any means whatsoever at any time whatsoever;
(e) the Court makes
a determination of fact that the Minister reassessed Mr. Abrametz in accordance
with the decision of the Federal Court of Appeal; and
(f) the Respondent’s
Motion that the Appeal be dismissed is denied.
Costs
[51]
Costs are awarded to the Respondent in respect
of this Motion. I encourage the parties to reach an agreement on the quantum.
Failing such an agreement, the parties have 60 days from the date of this Order
to make submissions on costs.
[52]
In endeavouring to reach an agreement, Mr.
Abrametz may wish to bear in mind the fact that I consider this Motion to have
been made unnecessarily complex by the confusing nature of the Notice of Appeal,
his baseless objection to the Respondent introducing non-controversial evidence
by way of affidavit and his obstinate refusal to acknowledge that the Resulting
Reassessment was issued in accordance with the decision of the Federal Court of
Appeal. Unless Mr. Abrametz is able to convince me that I am wrong, any
decision that I am required to issue in respect of costs will reflect those
views.
Signed at Toronto,
Ontario, this 17th day of July 2014.
“David E. Graham”
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