Date: 20031217
Docket: T-517-01
Citation: 2003 FC 1495
Ottawa, Ontario, this
17th day of December, 2003
PRESENT: THE HONOURABLE MR.
JUSTICE MacKAY
BETWEEN:
STEVE PRSA
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER AND ORDER
[1]
The Applicant seeks judicial review of and an Order setting aside
the decision on behalf of the Minister of National Revenue by an
officer of Canada Customs and Revenue Agency (the "Agency") dated
February 23, 2001, not to exercise the discretion conferred on
the Minister by subsection 152(4.2) of the Income Tax Act (the
"Act") to reassess the Applicant for taxes paid for the period
1985 through 1994 so as to grant him a disability tax
credit for those years.
[2]
The Applicant suffered serious injuries at his workplace in
October 1982. He was off work for a time, returning in 1984 to
light duties which he performed until 1993 when he ceased work on
the advice of his doctor. In 1994, he first made application for
a disability tax credit as he did in subsequent years. By a
consent judgment in 2000 his appeals of his 1995 and 1996 tax
assessments were allowed on the basis that he was entitled to the
disability tax credit for those years pursuant to subsection
118.3(1) of the Act. Thereafter he requested that the Minister
exercise his discretion pursuant to subsection 152(4.2) of the
Act to reassess him for the period 1985 through 1994 and to grant
him the disability tax credit for each of those years.
[3]
His request was refused in May 2000 and in the following month
his counsel requested an administrative review of that decision.
This was undertaken by an officer on behalf of the Minister who
requested, and the Applicant provided, medical reports on his
medical condition. Under subsection 152(4.2) the Minister may, if
application therefor has been made by a taxpayer, reassess tax,
interest or penalties at any time after the expiration of the
normal reassessment period. Information Circular 92-3 of
the Agency provides that it will issue a refund under subsection
152(4.2) "if it is satisfied that such a refund or reduction (in
the amount owed) would have been made if the return or request
had been filed or made on time".
[4]
In this case the officer conducting the administrative review had
before her a report of an examination by the Ontario Ministry of
Health dated February 1984, apparently in relation to a Workers
Compensation Board appeal. This was after injuries were suffered
by the Applicant and immediately before the years for which he
now seeks disability tax credits. That report indicated that the
Applicant's condition did not deprive him of the ability to
walk without help that was normal for his age, and the report did
not note any other condition within those listed by the Act as
qualifying for a disability allowance. Also before the officer
concerned with the review were six certificates concerning his
application for disability tax credits relating to the years from
April 1995 through October 1996 all of which indicated that the
Applicant became restricted in basic activities of daily living
in 1982 but each also indicated that he was able to perform the
seven basic activities of daily living specified in subsection
118.4(l) of the Act.
[5]
Under the latter provision the qualifying conditions of
disability are set out, including the requirement of an
inordinate amount of time to perform a basic activity of daily
living, such as walking. It is that activity among those
specified by the statute, i.e., walking but requiring an undue
amount of time to do so that the Applicant here claims as a
result of his accident in 1982.
[6]
The officer considering his application for reassessment
concluded, based upon the evidence before her, that while he may
have suffered chronic pain as a result of the accident he was not
markedly restricted in the years in question in his ability to
perform a basic activity of daily living as defined in the
statute. That conclusion was accepted and he was advised that his
request for reassessment was refused. That decision led to this
application for judicial review.
[7]
The Applicant argues that the officer considering his application
for reassessment erred and did not
consider the evidence that was before her to demonstrate that the
applicant's ability to perform the basic activity of daily
living, namely walking, was markedly restricted because he
required an inordinate amount of time to perform the basic
activity of walking. It is submitted that the words "an
inordinate amount of time" to perform a basic activity of daily
living are to be interpreted in the common sense every day use of
those words to mean longer than usual when compared to normal
people.
[8]
The Respondent submits that the standard of review to be applied
in a review of the exercise of the Minister's discretion
under subsections of the Act is that of patent
unreasonableness.
[9]
The Respondent argues that the decision under review is clearly
not patently unreasonable. Further, the Respondent submits that
the Minister observed the principles of procedural fairness and
did not err in law pursuant to subsection 18.1(4) of the Federal Court Act in making its
decision.
[10]
The Respondent underlines the fact that over the course of two
reviews by the Minister, the Applicant had the opportunity to
make representations and submit relevant documentation. The
Agency carefully considered all of the facts before the decision
maker, and the guidelines formulated to assist in the exercise of
the Minister's discretion under subsection 152(4.2) of the
Act were considered before discretion was exercised to decline the
relief sought by the Applicant. Thus, the Respondent argues that
the Applicant has failed to point out to any reason which would
warrant this Court's intervention.
[11]
It is trite law that where the Minister's discretion has been
exercised in good faith and in accordance with the principles of
natural justice and where reliance has not been placed upon
considerations irrelevant or extraneous to the statutory purpose
of that discretion, this Court should not interfere with the
exercise of that discretion even if the Court would have
exercised that discretion in a different manner had it been
charged with that responsibility. In other words, unless the
Court is persuaded that the decision in question is patently
unreasonable, the Court would not intervene.
[12]
When this matter was heard in Toronto on June 10, 2003, after
hearing from counsel for both parties, the Court, in the interest
of justice, adjourned the proceeding pending an opportunity for
new counsel representing the Applicant to seek additional
evidence to support the Applicant's claim, and an opportunity for
any such information to be assessed, within a fixed time frame
and thereafter for further submissions to be made by the parties.
This unusual step was taken in view of the limited value of the
outstanding claim by the Applicant, and his plea that further
time be provided to obtain evidence from doctors who were no
longer in practice but who knew his situation in the 1980s and
early 90s.
[13]
It was acknowledged by counsel for the Attorney General that if
new evidence were available about the Applicant's condition
in the years in question that could be assessed and his request
re-evaluated. In the circumstances it seemed to me that
costs would be saved for all by providing an opportunity for
further evidence to be provided and if any were, for the Court to
consider further submissions on behalf of the parties should that
prove necessary. Thus an Order went on June 10th, 2003 so
directing, but providing that any further evidence be submitted
by the end of October 2003.
[14]
By correspondence dated November 5th , 2003, counsel for the
Respondent indicated that neither the Respondent nor the Agency
had received any additional evidence from the Applicant. In the
absence of further evidence, the Court determines that the
Applicant has not established that the decision in question was
patently unreasonable.
[15]
In the circumstances, the application of Mr. Prsa for judicial
review is dismissed.
ORDER
[16]
IT IS ORDERED that the application for judicial review is
dismissed.
"W. Andrew
MacKay"
J.F.C.
Ottawa, Ontario
December 17, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF
RECORD
DOCKET:
T-517-01
STYLE OF
CAUSE:
STEVE PRSA
- and -
HER MAJESTY THE
QUEEN
PLACE OF
HEARING:
Toronto, Ontario
DATE OF
HEARING:
Tuesday, June 10, 2003
REASONS FOR ORDER AND
ORDER OF MacKAY
J.
DATED:
Wednesday, December 17, 2003
APPEARANCES:
Michael F.
O'Connor
FOR
APPLICANT
Kevin Dias
FOR
RESPONDENT
SOLICITORS OF
RECORD:
O'Connor,
Zanardo
Mississauga,
Ontario
FOR
APPLICANT
Morris Rosenberg,
Q.C.
Deputy Attorney
General of Canada
FOR
RESPONDENT
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