Date: 20060427
Docket: T-813-05
Citation: 2006 FC 531
Ottawa, Ontario, April 27, 2006
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
NORTH VANCOUVER AIRLINES LTD.
Applicant
and
THE MINISTER OF NATIONAL REVENUE, and
CANADACUSTOMS AND REVENUE AGENCY
Respondents
REASONS FOR ORDER AND ORDER
Introduction and Background
[1] In this judicial review application, North Vancouver Airlines Ltd. (the applicant) challenges the March 30, 2005 decision of the Minister's delegate (the Minister) refusing pursuant to subsections 281.1(1) and (2) of the Excise Tax Act (the Act) the applicant's November 10, 2004 request the Minister cancel penalties and interest (at that time amounting to $20,125.16 in penalties and $6,229.18 in interest) which were mandatorily generated as the result of an assessment dated May 27, 2002 which determined the applicant had miscalculated its input tax credits (ITC's) and GST collectibles when making its GST returns for quarterly periods from the 1st of April 1998 to the 31st of March 2001.
[2] In these reasons I refer to the respondents in the singular as it was the respondent Minister's decision which was attacked.
[3] In simple terms, subsections 281.1(1) and (2) of the Act which are characterized as fairness legislation, provide that the Minister "may waive or cancel interest and penalties payable by person under section 280 of the Act". The Federal Court of Appeal in Vitellaro et al v. Canada Customs and Revenue Agency (2005) FCA 166 said that pursuant to these provisions "the Minister has a broad discretion to waive interest and penalties".
[4] The Minister, through GST memorandum 500-3-2, has issued guidelines setting out a non-exhaustive list of factors that will weight in favour of an applicant in the exercise of the Minister's statutory discretion to waive penalties and interest including:
(1) where penalties and interest resulted from an extraordinary circumstance beyond the person's control which prevented the person from complying with the Act;
(2) where the penalties and interest were incurred primarily because of the actions of Canada Customs and Revenue Agency (the Agency);
(3) was there an inability on the part of the person to pay the amounts owing (financial hardship).
[5] Section 9 of the guidelines outlines the factors which will be considered by the Agency to determine whether or not penalties will be cancelled or waived where an extraordinary circumstance beyond the person's control has prevented the person from complying with the Act. These factors include the taxpayer's compliance record, whether the taxpayer knowingly allowed an outstanding balance to exist upon which the penalties and interest have accrued, whether the person acted quickly to remedy the omission or the delay in compliance which originally resulted in penalties and interest being charged and whether there is evidence that the person exercised reasonable care or diligence and was not negligent or careless in the conduct of its affairs.
[6] The Minister's rejection letter of March 30, 2005 expresses the conclusions arrived at in the application of the guidelines. The reasons given by the Minister for refusing to waive interest and penalties are contained in the reports and recommendations of Agency officials in the Appeals Division of the Burnaby-Fraser Tax Services Office (the TSO) in Surrey, British Columbia (see par 6 Vitellaro, supra). The respondent's record contains the relevant reports and recommendations supported by two affidavits of the decision-makers. This record is discussed later in these reasons.
[7] In that same case, Justice Evans, on behalf of the Federal Court of Appeal, stated the standard of review of the Minister's exercise of discretion is unreasonableness simpliciter and, in the application of that standard, the question is whether the reasons given by the Minister would stand the somewhat probing examination to which administrative decisions are to be subjected in order to determine whether they are unreasonable (see also the Federal Court of Appeal's decision in Lanno v. CanadaCustoms and Revenue Agency (2005) FCA 153).
[8] The applicant, in his application to the Minister for cancellation of penalties and interest raised several grounds including the existence of extraordinary circumstances, unreasonable delays by the Agency in carrying out the GST audit, undue delays of the Agency in the appeals process or previous fairness reviews and finally, financial hardship. He also argues the Minister failed in his promise to give his application a fresh review.
[9] The Minister concluded as follows on extraordinary circumstances:
"The extraordinary circumstances represented by you include the poor performance of your accountants, the illness of your bookkeeper, the legal separation of the two principals in the company and the events of the 2001-09-11 incident that devastated the industry. In light of the information contained in GST memorandum 500-3-2-1, I have determined that it is not appropriate to cancel interest and penalties due to extraordinary circumstances."
[10] On the applicant's ground of undue delay by the Agency , the Minister stated:
"Having reviewed the audit and appeals activities I find no unreasonable amount of time spent in dealing with the audit, the appeals process or previous fairness reviews. In light of the information contained in GST memorandum 500-3-2-1, I have determined that it is not appropriate to cancel interest and penalty due to error or delay on our part."
[11] The Minister partly upheld the applicant's claim of financial hardship. He cancelled accruing penalties and interest from February 17, 2004 to March 30, 2005, the date of his decision. February 17, 2004 is the date the sum of $111,289.04 was placed in trust. This amount is the product of the sale of the applicant's assets to Regency Express Flight Operations (Regency). As the result of a Requirement to Pay (RTP) issued to Regency, the Agency in January of 2004 agreed to enter into an arrangement with the applicant. That arrangement provided for the immediate payment to the Agency of $65,000.00 as partial payment of the RTP with the balance of $46,289.04 to be held in trust pending the outcome of the fairness review.
[12] As an aside, my understanding of what the applicant owes the Agency as at February 1, 2005 is the following:
(a) outstanding GST taxes $23,808.99
(b) penalties $20,158.13
(c) interest $ 6,229.18
[13] In particular, additional penalties and interest were assessed against the applicant in four reporting periods either for wrong net tax reported, late filing of returns, and balance of GST tax owing not paid with return.
[14] Based on these calculations, the applicant's judicial review application is misconceived to the extent that it seeks the return of all of the $46,389.04 held in trust. The applicant cannot seek the return of GST tax owing.
[15] The reason for the partial cancellation of penalties and interest was because no mention of the accruing penalties and interest had been discussed between the Agency and the applicant. The Minister was of the view the benefit of the doubt should be given to the applicant because the amount paid plus the amount held in trust represented payment in full of the amount on the RTP and the applicant's GST debt to the Agency. Moreover, the Minister took into account the fact that in connection with a previous fairness application and its rejection, the Appeals Division of the Vancouver Tax Services Office had not informed the applicant his ground of its financial hardship had been denied leading to more penalties and interest continuing to accrue.
[16] The Minister in his decision rejected the applicant's main argument on financial hardship. He wrote:
"Financial hardship for a Corporation is defined as where the continuity of business operations and the continued employment of the corporation's employees are unnecessarily jeopardized by the penalty and interest charged. This review has determined that although the Corporation was experiencing some difficulty prior to this GST debt being raised, this was a result of ongoing business decisions and can be concluded as the cost of doing business. The financial hardship mentioned in your request references to individual directors, rather than to the corporation itself. There is no evident financial hardship on the part of the Corporation."
[17] By way of background I reproduce section 6 to 9 of the Fairness Guidelines:
6. Penalties and interest may be cancelled or waived where they resulted from an extraordinary circumstance beyond the person's control which prevented the person from complying with the Act. For example, one of the following extraordinary circumstances may have prevented the person from making a payment when due, or otherwise complying with the Act:
(a) natural or human-made disasters, such as flood or fire;
(b) civil disturbances or disruptions in services, such as a postal strike;
(c) a serious illness or accident; or
(d) serious emotional or mental distress, such as death in the immediate family.
7. The cancellation or waiver of penalties and interest may also be appropriate in some circumstances if the penalties and interest were incurred primarily because of the actions of the Department. For example:
(a) processing delays that resulted in the person not being informed within a reasonable amount of time that an amount was owing;
(b) errors in departmental publications, which led the person to file returns or make payments based on incorrect information;
(c) incorrect written information provided in an interpretation or notice given to a specific person by the Department;
(d) departmental errors in the processing of GST returns or information; or
(e) delays in providing information necessary for the person to comply with the Act.
8. It may be appropriate for the Department, in circumstances where there is an inability on the part of a person to pay amounts owing, to consider cancelling or waiving penalties and interest in whole or in part to facilitate collection. For example:
(a) when collection has been suspended due to an inability to pay;
(b) when a person is unable to conclude a reasonable payment arrangement because the penalty and interest charges represent a significant portion of the payments. In such cases, consideration may be given to waiving penalties and interest in whole or in part for the period beginning on the first payment due date under the payment arrangement until the amounts owing are paid, provided the agreed payments are made on time.
9. Where an extraordinary circumstance beyond the person's control has prevented the person from complying with the Act, the following factors will be considered by the Department to determine whether or not penalties and interest will be cancelled or waived:
(a) does the person have a satisfactory history or voluntary compliance (i.e., have previous GST returns been filed and payments made on time)?
(b) has the person knowingly allowed an outstanding balance to exist upon which the penalties and interest have accrued?
(c) has the person acted quickly to remedy the omission or the delay in compliance, which originally resulted in penalties and interest being charged?
(d) is there evidence that the person exercised reasonable care and diligence (e.g., planned for anticipated disruptions) and was not negligent or careless in the conduct of its affairs? The onus is on the registrant to keep abreast of any new developments in the administration of the GST so as to ensure continuing compliance. [emphasis mine]
The Facts
[18] Before analyzing the applicant's arguments, it is appropriate to mention the following contextual facts.
[19] The applicant company was incorporated in 1994. Its founding shareholders were Anthony Kuun who argued the applicant's case before me, his ex-wife and Mr. Kuun's father. Essentially, during the relevant period, the applicant was a family business.
[20] Until it ceased operations on March 30, 2003, the applicant had operated a licensed air service carrying passengers and cargo from Seattle, Washington and Vancouver/Victoria, British Columbia to certain points on Vancouver Island and the Queen Charlotte Islands.
[21] The applicant rapidly expanded in terms of revenues, number and types of aircrafts and employees after its first flight in July of 1994. In particular, this expansion principally occurred in fiscal years 1997, 1998 and 1999. In 1999 revenues reached $4.5 million with operations carried out by 70 employees operating and maintaining several leased or company-owned aircraft. A downturn occurred in 2000 when a former competitor reappeared in the market recapturing a major customer. Matters were exacerbated by the events of 9/11 with the result that in fiscal 2003, revenues had fallen back to $1.5 million, several aircraft had been shed and a number of employees had been laid off. As noted, the applicant ceased operations on March 30, 2003.
[22] The applicant's troubles with the Agency first arose from an audit, concluded in May 2002, of the applicant's GST returns for the period from the 1st of April, 1998 to March 31, 2001. The Agency found the applicant had improperly calculated its GST collectibles and its ITC's causing GST tax owing of $148,397.12 with penalties of $14,648.59 and interest at $10,654.94 totalling $173,700.65 as reflected in the Agency's Notice of Assessment dated May 27, 2002.
[23] The applicant objected to this assessment. The applicant also, on September 24, 2002 applied to the Minister for a waiver of interest and penalties.
[24] On February 13, 2003, the Minister allowed, in part, the applicant's objection. In a Notice of Reassessment of that date, he adjusted downwards the GST owing by the applicant and, as a consequence, also the penalties and interest. The GST owing now amounted to $103,740.89 plus interest of $6,926.29 and penalties of $4,535.08. As part of the reassessment process the applicant agreed to be bound by the result. As a result the principal amount of GST debt is not contested by the applicant.
[25] On February 18, 2003, the Minister denied the applicant's September 24, 2002 request for a waiver of penalty and interest. According to the Minister, the applicant had not established an extraordinary circumstance beyond the applicant's control as the hiring of adequate and qualified accounting staff was within its control. (see page 28 Respondent's Record, (R.R.) Volume 1).
[26] The applicant made a second waiver request on July 27, 2003. Mr. Kuun, on behalf of the applicant, claimed five extraordinary circumstances as well as an inability to pay.
[27] The first extraordinary circumstance invoked was, despite hiring qualified individuals, there was poor performance by past accountants hired by the airline. The second extraordinary circumstance was the illness of the applicant's current bookkeeper who was struck with cancer in 2000 and was off from work for nine months. The third extraordinary circumstance was the events of 9/11 resulting in many ticket cancellations and changed bookings and the extra time involved to calculate loss of revenue. The fourth extraordinary circumstance was the separation of Mr. Kuun from his wife. He argued undue duress. He claimed the undue duress that the company imposed on the couple who were its two major shareholders caused serious them emotional distress. The final extraordinary circumstance was the pressures on Mr. Kuun's time due to the sale of the company's assets, the separation proceedings, and his employment with another airline.
[28] In that July 27, 2003 letter requesting the waiver, the applicant claimed the audit process took a very long time. It also took issue with the length of time for the reassessment of February 13, 2003. Mr. Kuun claimed an inability to pay by the company and by individual shareholders noting that the applicant's assets had been sold, but the sale of proceeds had yet to be paid.
[29] The applicant's second waiver request of July 27, 2003 was denied on April 27, 2004. Based on a report and recommendation dated January 8, 2004, an Agency official in the Appeals Division of the Vancouver Tax Services Office indicated on behalf of the Minister, his review showed no error or delay on the Agency's part nor the existence of circumstances beyond its control. In that April 27, 2004 decision, the Agency official did not deal with the applicant's request for waiver on financial inability grounds despite the fact that this criteria had been evaluated by the Vancouver Tax Office (see R. R., volume 1, page 43). In that assessment, Collections officials at the Agency noted the financial hardship in the applicant's request was referenced to individual directors rather than to the company itself. The report from the Collections Section states, that as it stands, funds are available from the sale of the assets which are being held in trust to pay the GST debt in full once the company receives a response to its fairness request. It states the company has already ceased operations and enforcing the interest and penalties will not cause any undue hardship on the company and will not force any employees out of work. It concluded there was no evident financial hardship.
[30] The applicant appealed to the Federal Court the Minister's April 27, 2004 decision. That application for judicial review was discontinued by the applicant after being promised a fresh review by the Minister which was undertaken by the Minister on the recommendation of the Department of Justice who realized the Minister's April 27, 2004 decision had not dealt with financial hardship.
[31] The fresh review which culminated in the March 30, 2005 decision (sought to be quashed in this proceeding) was conducted not by the Vancouver District Tax Office which had denied the applicant's waiver applications of September 24, 2002 and July 27, 2003. It was, as noted, conducted by the Burnaby-Fraser TSO in Surrey, British Columbia.
[32] The Minister's delegate who made the March 30, 2005 decision was Raminder Pooni, at the time, the acting Chief of Appeals at the TSO. She deposed an affidavit in these proceedings and she was not cross-examined.
[33] From a procedural perspective, fairness requests are dealt with by the Appeals Division of the appropriate district tax office. If a fairness application raises an issue of financial hardship, the report and recommendations to the decision-maker are developed by the Collections Section of the appropriate district tax office. In the applicant's case, the line officer in the Burnaby District Tax Office who prepared the report and recommendation on the financial hardship aspect of the applicant's fairness application was Gordon Crichton who also deposed an affidavit in these proceedings. He was not cross-examined.
[34] When the fresh review was first undertaken by the TSO, the first step of the process was a communication with Mr. Kuun on October 8, 2004. Mr. Kuun who is the applicant's president and sole manager was told by Appeals Officer Yunker that the district office following the Department of Justice's letter to Mr. Kuun "will give your fairness request a fresh review". Mr. Kuun was invited "to resubmit or make new submissions regarding three items in your previous correspondence". Mr. Kuun was told "we will entertain any other submission you wish to make regarding the cancellation of interest and penalties on the grounds of extraordinary circumstances, delays by CCRA and undue hardship."
[35] In reply to that letter, Mr. Kuun communicated to Mr. Yunker on November 10, 2004. The first paragraph of his letter (R. R., volume 1, page 50) he wrote:
"Regarding the three previous submissions, it is the one of July 27, 2003, supported by that of August 26, 2004 that addresses GST memorandum 500-3-2-1. That letter addresses no less than five major extraordinary circumstances that affected the company, the length of time that it took to get results of the GST audit and the fact that none of the parties had an immediate ability to pay."
[36] Mr. Kuun then made some submissions "to bring you up to date on the present situation". He stated at this time the CCRA has been paid in good faith the full assessment of the audit. He states only the interest and penalties have been held in escrow pending the results of the fairness application. He indicates the original shareholders of the company have been continuing to pay for past and current debts of the company and he is heavily in debt. He then talked about his father's situation who had recently retired and had invested heavily in the applicant.
[37] He then addressed circumstances mentioned in paragraph 9 of the GST memorandum and stated (a) the company did have an excellent record of filing GST returns on time; (b) the company did not knowingly allow the penalties and interest to accrue because its principals had only discovered the actual outstanding balance after the GST audit results were received. He stated in the meantime the applicant remitted GST in what the applicant believed to be the correct manner, according to the accounting software that was built for that purpose. He stated as soon as they were available, the funds were paid to eliminate the outstanding delay in compliance and asserts the applicant was diligent and was never negligent or careless in the conduct of its affairs.
[38] The report and recommendations on financial hardship which went up to Mr. Pooni as part of his decision-making process is set out as Exhibit P to Mr. Pooni's affidavit (see page 52ff, R. R., volume 1, page 52 to 56). The report and recommendation on other grounds advanced by the applicant are set out in Mr. Yunker's March 15, 2005 document (see pages 60 to 64, R. R., volume 1).
Analysis
[39] As noted, this application for judicial review was conducted and argument was made to this court by the applicant's President. Such representation is permissible with leave of the court which the Court grants nunc-pro-tunc. (See Rule 120 of the Federal Court Rules, 1998)
[40] In addition to the standard of review and its application in this case which have already been referred to in this reasons, I outline the following principles gleaned from the jurisprudence which are relevant to the determination of judicial review applications challenging the Minister's decision on fairness applications.
[41] First, on a judicial review application, this court cannot intervene as if it was in the Minister's shoes exercising the Minister's discretion anew. This court can only intervene if an applicant demonstrates the Minister, in making his decision, made reviewable errors (see Her Majesty the Queen v. Barron 97 DTC 5121 (FCA).
[42] Second, subsections 281.1(1) and (2) of the Excise Tax Act confer upon the Minister a wide discretion to waive or cancel interest. The grounds upon which the court can intervene is well-established in the jurisprudence. The courts cannot intervene where statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose (See Kaiser v. MNR (1995) DTC 5187 relying upon the Supreme Court of Canada's judgment in Maple Lodge Farms and the Government of Canada[1982] 2 S.C. R. 2 In terms of the application of guidelines, the decision of the Supreme Court, above, is supplemented by the decision of that Court in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. In that case the Supreme Court had regard to Ministerial guidelines which it said were "of great assistance to the Court in determining whether the reasons [of the decision-maker] were supportable."
[43] I return for a moment to the standard of review and to the explanation of the unreasonableness standard provided by Justice Iacobucci in Law Society of New Brunswick v. Ryan [2003] 1 S.C.R. 247. In that case, Justice Iacaboucci concluded at paragraph 2:
"Viewed as a whole, the decision of the disciplinary body is supported by tenable reasons which are grounded in the evidentiary record; therefore, it was not an unreasonable decision."
[44] At paragraph 48 of his reasons, Justice Iacobucci stated that where the appropriate standard is reasonableness simpliciter:
"A court must not interfere unless the party seeking review has positively shown that the decision was unreasonable."
[45] And at paragraph 49 of his judgment:
"That the reasonableness standard requires a reviewing court to stay close to the reasons given by the Tribunal and "look to see" whether any of those reasons adequately support the decision. Curial deference involves respectful attention, though not submission, to those reasons."
[46] I reproduce paragraphs 54, 55 and 56 of the Justice Iacobucci's reasons in which he draws together the essence of his thinking:
54. "How will a reviewing court know whether a decision is reasonable given that it may not first inquire into its correctness? The answer is that a reviewing court must look to the reasons given by the tribunal."
55. "A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling." (see Southam, at para. 79).
56. "This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole."
[47] A review on the reasonableness standard of the Minister's March 30, 2005 decision not to waive the applicant's penalties and interest leads to the conclusion that the applicant's judicial review application must be dismissed because the reasons given for not waiving penalties and interest were tenable in that they were sufficient to support the decision in the sense that those reasons can stand up to a somewhat probing examination. The applicant has failed to persuade me otherwise.
[48] I have carefully reviewed Mr. Kuun's arguments on behalf of the applicant. His arguments were transcribed. Basically they were a reiteration of the written submissions he made to the Agency in his three applications for relief from penalties and interest mandatorily imposed.
[49] He relied heavily on extraordinary circumstances: the nine-month absence of the applicant's bookkeeper; the poor performance of past company accountants, the mental stress of his separation from his wife at the time of the audit, the events of 9/11 in 2001 and his personal unavailability.
[50] As noted, Raminder Pooni, the Minister's delegate deciding the issues of extraordinary circumstances, undue delay and the section 9 guideline factors, came to the conclusion that none of the reasons given as extraordinary circumstances that prevented compliance with the Excise Tax Act were the type of extraordinary circumstances beyond the applicant's control as intended by the ministerial guidelines.
[51] The applicant has not demonstrated how Ms. Pooni's assessment was in error. To the contrary, the evidence in the record supports her conclusion that the circumstances identified by the applicant did not prevent it, if acting diligently, from submitting to the Agency accurate GST returns in terms of input tax credits and GST collectibles.
[52] The applicant argued undue delay by the Agency in performing the audit and in treating his appeal. Ms. Pooni, in her affidavit deposed that neither the time taken to conduct the audit and issue the initial assessment was not unreasonable or unusually long. She came to the same conclusion concerning the time taken to review the applicant's notice of objection and to issue a re-assessment. As noted, she was not cross-examined. Faced with similar circumstances, Justice Dubé in Floyd Estate v. Minister of National Revenue [1993] 68 F.T.R. 157 rejected that argument at paragraph 13 of his reasons.
[53] Mr. Kuun, on behalf of the applicant, strenuously argued the Minister's delegate, in this case, via Gordon Crichton, had erred when he found no undue hardship under the guidelines.
[54] Mr. Kuun was very critical of the requirements to pay the Agency had issued and expressed the view that these garnishees caused the applicant to cease operations.
[55] In his report, found at respondent's record, volume 1, page. 82, Mr. Crichton expressed the reasons for his recommendation. He stated financial hardship for a corporate client is defined as occurring when the continuity of business operations and continued employment of a firm's employees are unnecessarily jeopardized by the penalty and interest charged. He was of the view that the applicant was experiencing some difficulty prior to the GST debt being raised but this, according to him, was a result of their ongoing business decisions and can be concluded as the cost of doing business. He stated the penalty and interest charged was minor compared to the tax arrears assessed and that of the Corporation's large bank and shareholder liabilities. He went on to justify why the applicant should receive partial relief.
[56] I note the applicant voluntarily ceased operations at the end of March, 2003 and, as at the 1st of April, 2003, it entered into an Asset Purchase Agreement with Regency pursuant to which Regency agreed to purchase certain assets from the applicant for $275,000.00, a large part of which Mr. Kuun states went to pay suppliers which still left those suppliers short another $300,000.00.
[57] The applicant ceased operations before its July 27, 2003 waiver request and before the Agency took steps to collect its GST debt which led to the Regency payment in February, 2004.
[58] The applicant has failed to persuade me the Minister erred in determining the payment of penalties and interest arising out of the GST debt of some $25,000.00 jeopardized the applicant's continued business operation. From the record, it appears to me to be evident that the payment of this amount would not do so.
[59] In addition, the applicant has not convinced me that the Minister's delegate erred when he concluded that the financial hardship mentioned in the applicant's request referenced to individual directors rather than the Corporation itself and concluded that there was no evident financial hardship on the part of the Corporation.
[60] I will not dwell on those aspects of the decision-maker's reasons which analyze the applicant's history of GST tax compliance. The Minister's decision does not rely on any negative factors related to the applicant to deny the waiver it was requesting.
[61] Finally, the applicant complains it did not get a fresh review of its waiver application he was promised for discontinuing his original judicial review application from the negative April 27, 2004 application. He says the decision-makers reviewed the past waiver applications seeking the cancellation of penalties and interest arising out of its GST debt.
[62] The applicant is correct in saying that the two decision-makers reviewed the applicant's past applications but I find such review cannot be a basis justifying the applicant's complaint. The respondent's record shows at page 48 of volume 1, that Mr. Yunker wrote to Mr. Kuun on October 8, 2004 concerning the fresh review. He identified the GST waiver guidelines and he enclosed copies of the applicant's previous waiver submissions. The applicant was invited to re-submit or make new submissions regarding extraordinary circumstances, delays by the Agency and undue hardship.
[63] In response at page 50 of the respondent's record, Mr. Kuun specifically referred the Agency to the applicant's waiver application of July 27, 2003 supported by that of August 26, 2004. Mr. Kuun went on in his response of November 10, 2004 to make additional submissions.
[64] What is more important in my view is that this review was conducted by persons in the Burnaby-Fraser Tax District Office who had nothing to do with the disposition of the applicant's previous waiver applications. Moreover, it led to a partial cancellation of penalties and interest. Nothing in the record indicated the Minister felt bound by previous determinations. These factors illustrate the applicant got a fresh look.
[65] For there reasons, this judicial review application shall be dismissed.
ORDER
THIS COURT ORDERS THAT this judicial review application is dismissed.
"Francois Lemieux"
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