Angell v. Canada (Minister of National Revenue), 2005 FC 782

                                                                                                                                  Date: 20050531

                                                                                                                             Docket: T-2096-04

Citation: 2005 FC 782

BETWEEN:

                                        Richard Angell, Douglas Atherton, Guy Auger,

Claude Bastien, Madeleine Bastien, Georges Bédard,

André Bergeron, Denis Blais, Irène Bleton,

Raymond Boucher, Robert Catudal, Diane Coallier,

Pierre Collette, André Desjardins,

Marcel Dontigny, Madeleine Duford-Bédard,

Marguerite Dumais, Larry Elliot,

Maurice Foucault, Pierre Gravel,

Andrea Gugliandolo, Robert S. Jude,

Jerry Kuzyk, Liette Lafond, Michel Laframboise,

Claude Landry, Robert Laurin,

Christian Lavoie, Yves Lemay, Gérard Lemieux,

Liliane Lupien, Michel Lyman,

Gaétan Mailhot, John McAllister, Réjean McKeown,

Denis McNamara, Normand Ménard,

Richard Migas, Mario Nantel,

Romain Paquette, François Piché,

Jean-Guy Proteau, Lilly Rahmann,

Réjean Rougeau, Claude Roulx, Jacques Samson,

Marcel Samson, Julio Seiz, Geneviève Spinedi,

Duc-Thieu Vu and Brian Wheeler

Applicants

and

Minister of National Revenue,

Canada Customs and Revenue Agency,

Her Majesty the Queen in right of Canada, and

Attorney General of Canada

Respondents

REASONS FOR ORDER

RICHARD MORNEAU, PROTHONOTARY:

Introduction

[1]         Although they have challenged their assessments on the merits in the Tax Court of Canada (the TCC) and that issue is, in theory, still pending in that court, the applicants have nevertheless brought an application for judicial review in this Court (the applicants' application) in which they are seeking, inter alia, a definitive end to the assessment process and the vacating of the notices of reassessment on the ground, essentially, that the Minister of National Revenue (the Minister) committed an extremely serious procedural mistake and blatant error in failing to make a decision within a reasonable time on the objections filed by the applicants.

[2]         Through the instant motion, the respondents are seeking to have the applicants' application struck out on the grounds that this Court has no jurisdiction to grant some of the relief the applicants are seeking, that the applicants' application in relation to the other relief sought simply discloses no reasonable cause of action or that this application is frivolous or vexatious or is an abuse of the process of the Court.

Context

[3]         On or about May 19, 1992, the Minister sent the applicants notices of reassessment (the reassessments) by which the Minister refused the applicants certain tax credits for scientific research and development expenditures for the 1988 taxation year.

[4]         Around August 3, 1992, the applicants filed notices of objection to these reassessments. It was not until October 30, 1998, or thereabouts, that the applicants appealed the reassessments in the TCC.

[5]         It appears from the affidavit of one of the applicants, Mr. Douglas Atherton, dated January 11, 2005 (the Atherton affidavit) and filed by the applicants in support of their application, that the applicants did not appeal to the TCC until 1998 because in the meantime, for more than six years, they were awaiting a decision by the Minister on their objections to the reassessments.

[6]         From our understanding of the Atherton affidavit, the applicants argue that the Minister alone is responsible for the delay, that the delay breaches the Minister's duty to react with due dispatch to any notice of objection that is filed and that because of the delay, by the time the notices of appeal were filed in the TCC, the applicants could no longer adequately discharge their burden of proof in the TCC.

[7]         The applicants describe the situation as a grave and serious breach of procedural fairness.

[8]         It should be noted that the Atherton affidavit fails to explain how the applicants, once the notices of appeal were filed in the TCC, were adversely affected in terms of their burden of proof in that court.

[9]         When filing their record in reply to the respondents' motion to strike, the applicants also filed a motion to amend some of the relief previously sought in their application and to add to the relief sought in that application.

[10]       Since, in the case of an amendment, as in a motion to strike out a proceeding, the amendment should be allowed unless it is plain and obvious that the amendment is certain to fail (see Raymond Cardinal et al. v. Her Majesty the Queen, an unreported decision of the Appeal Division of this Court, dated January 31, 1994, docket A-294-77, per Heald, Décary and Linden JJ.A.), it would be appropriate, so as to simplify things, to consider that the amendments moved by the applicants are in fact part of the applicants' application and, at the end of the day, to assess the respondents' motion to strike on the assumption that all of the relief sought by the applicants is under review for the purposes of adjudicating this motion to strike. It will be understood that ultimately there will be no distinct adjudication on the applicants' amendment motion. The fate of the amendments will be determined by the fate of the respondents' motion to strike.

[11]       The relief sought by the applicants is formulated as follows (the relief sought by the application):

[TRANSLATION]

a.              a definitive end to the assessment and collection process in regard to the applicants for the 1988 taxation year and other years concerned following the investment by the applicants, in 1988, in the company Système ALH Enr. (ALH);

b.              the vacating of the notices of reassessment issued to the applicants for the 1988 taxation year and other years concerned following the investment by the applicants in ALH;

c.              the extinction by prescription of the amounts claimed from the applicants under the notices of reassessment for the 1988 taxation year and other years concerned following the investment by the applicants in ALH;

d.              an award of damages to the applicants for the harm caused by the failure of the Minister and the CCRA to make a decision;

e.              a declaration to the respondents that the blatant failure of the respondents to comply with their duty of dispatch under 165(3) ITA bars any suit or measure to recover the amounts payable under the notices of reassessment and, for the purpose of treating all of the applicants equally, the repayment with interest, where applicable, of any sum paid by the applicants in satisfaction of the notices of reassessment;

f.               leave for the applicants to seek any other appropriate relief;

g.              in the alternative, and without limitation of the foregoing, an order enjoining the respondents to cancel any interest running from the date of filing of the notices of objection;

h.              an award to the applicants of any further relief that this Court considers just and appropriate.

(It will be noted that the emphasis is the applicants' and reflects either partial or totally new amendments.)

[12]       Incidentally, the initial grounds given by the applicants for the relief sought have remained the same, and are formulated by them as follows:

[TRANSLATION]

a.              the respondents have failed to comply with the duty to act with dispatch set out in section 165(3) of the ITA and their duty to act fairly under the principles of Canadian administrative law;

b.              the respondents have breached the applicants' rights to security of the person and protection against any cruel and unusual treatment, recognized by sections 7 and 12 of the Canadian Charter of Rights and Freedoms (Canadian Charter);

c.              section 50 of the Budget Implementation Act, 2004, S.C. 2004, c. 22, stating that section 222 of the ITA, which establishes the ten-year limitation period on federal tax debts payable under the ITA, is without retroactive effect;

d.              even if section 50, supra, were retroactive, section 222 of the ITA, as drafted, is discriminatory and breaches the applicants' right to equality under section 15 of the Canadian Charter.

[13]       Finally, the respondents' motion to strike is moved pursuant to the principles set out by Mr. Justice Strayer of the Federal Court of Appeal in Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al. (1994), 176 N.R. 48, pages 54-55:

This is not to say that there is no jurisdiction in this court either inherent or through rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. (See e.g. Cyanamid Agricultural de Puerto Rico Inc. v. Commissioner of Patents (1983), 74 C.P.R. (2d) 133 (F.C.T.D.); and the discussion in Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al., [1994] 1 F.C. 102; 64 F.T.R. 127, at 120-121 F.C. (T.D.)) Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegation in the notice of motion.

[Emphasis added]

Analysis

[14]       I think, for the reasons that follow, that the Court must intervene in this case and allow the respondents' motion to strike.

[15]       There is no question that under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (the Act), the Minister has the power to make assessments (subsection 152(4) of the Act) and a taxpayer has the right to file a notice of objection in writing (subsection 165(1) of the Act). In the present case, these steps were taken and there is no reason to give further consideration to them.

[16]       Once a notice of objection is sent, the Act provides, in subsection 165(3), that the Minister has a duty to reconsider the assessment that was initially made. However, paragraph 169(1)(b) of the Act provides that a taxpayer who has served a notice of objection on the Minister may also, at any time, appeal to the TCC after the expiration of a 90-day period after service of the notice of objection, if the Minister has not vacated or confirmed the assessment or has not made a reassessment. Subsection 165(3) and subsection 169(1) of the Act read as follows:

[17]       These two provisions were considered by the Federal Court of Appeal in its decision of December 21, 2000 in James v. Canada (Minister of National Revenue - M.N.R.), [2000] F.C.J. No. 2135 (James).

[18]       In that judgment, the Court had to consider a decision of the Trial Division dismissing a motion by a taxpayer to have assessments vacated on the ground that the Minister had not acted with all possible dispatch in reconsidering the notice of objection. In that case, the Minister had taken more than ten years before confirming the assessments.

[19]       The Federal Court of Appeal noted as follows, at paragraphs 12, 13 and 20 of its reasons, that a delay in confirmation is unlikely to entail the vacating of the assessments and that in case of delay in this regard by the Minister, the solution for the taxpayer was either to appeal to the TCC or to apply to this Court for a writ of mandamus to force the Minister to act. Here is what the Court said:

12.            The Income Tax Act does not stipulate any consequence for a failure on the part of the Minister to deal with a notice of objection with all due dispatch. On that question, the leading authority in this Court is Bolton v. The Queen, (1996), 200 N.R. 303, 96 D.T.C. 6413, [1996] 3 C.T.C. 3 (F.C.A.). In that case Mr. Justice Hugessen, speaking for the Court, said this (at page 304, N.R.):

Parliament clearly did not intend that the Minister's failure to reconsider an assessment with all due dispatch should have the effect of vacating such assessment. If the Minister does not act, the taxpayer's recourse is to appeal pursuant to section 169.

13.            The reference to section 169 is a reference to paragraph 169(1)(b) of the Income Tax Act as now in force. . . .

. . .

20.            It was argued on behalf of Mr. James that the Bolton interpretation of paragraph 165(3)(b) imposes a statutory duty on the Minister but gives no effective weapon to taxpayers by which they can compel the Minister to comply. It is true that under Bolton, a taxpayer cannot claim the right to have a reassessment vacated because it is under objection for an unduly long period of time. However, it does not follow that the taxpayer has no effective remedy. The taxpayer may appeal to the Tax Court under paragraph 169(1)(b), or commence proceedings in the Federal Court to compel the Minister to consider the objection and deal with it. . . .

[20]       Moreover, allowing assessments to be vacated on the ground that the Minister failed to confirm an assessment with due dispatch would frustrate Parliament's intent by rendering meaningless paragraph 169(1)(b) of the Act, which expressly gives taxpayers a remedy when the Minister fails to confirm an assessment within a period considered appropriate by the taxpayer. It is clearly the purpose of the relevant provisions of the Act to give taxpayers the right to challenge the merit of their assessments without however allowing these assessments to be vacated on technical or procedural grounds that have no impact on the substance of the assessment. Granting the applicants the relief sought would effectively frustrate the achievement of that objective, and would be contrary to the rules of statutory interpretation.

[21]       Even more recently, in Addison & Leyen Ltd. v. Canada, [2005] F.C.J. No. 516, Mr. Justice Kelen of this Court again identified the specific and limited remedies available to taxpayers when they think the Minister is taking too long to act. At paragraphs 25 and 26 of his decision, Kelen J. states:

25.            The applicants are not the first taxpayers to complain that the tax department has not treated them fairly, has unreasonably delayed the processing of their tax assessment and has administratively abused them. Parliament is aware of such complaints, and has provided in subsections 152(8) of the ITA that an assessment shall be deemed to be valid and binding notwithstanding any error, defect or omission in the assessment or in any proceeding relating to the assessment. Moreover, Parliament has provided in section 18.5 of the Federal Courts Act that there is no judicial review in the Federal Court with respect to the validity of an assessment if there is an adequate alternative remedy. When the tax department acts unfairly, abusively or unreasonably, the taxpayer has the following remedies:

1.              an appeal to the Tax Court of Canada from the assessment;

2.              an appeal to the Minister that the taxpayer has been unfairly, unreasonably or abusively treated whereupon the Minister has the power to waive all penalties and interest assessed against the taxpayer. There is judicial review to the Federal Court from the Minister's decision on the fairness appeal;

3.              an action for damages in this Court or a provincial superior court based on negligence or abuse of process by officials of the tax department; and

4.              an application for mandamus in this Court that the Minister act without delay.

26.            For these reasons, this Court does not have the jurisdiction to grant the relief sought by the applicants in this application for judicial review. Accordingly, this application for judicial review is bereft of any chance of success and must be struck.

[22]       Furthermore, in Solomons v. Canada, [2003] T.C.J. No. 22, Mr. Justice Bowie of the TCC notes, at paragraph 9 of his reasons, that taxpayers cannot rely on their objections and later complain of a delay:

9.              It is now settled [See Note 5 below] that when a taxpayer who has delivered a notice of objection does not receive a notice of confirmation or a notice of reassessment "with all due dispatch" [See Note 6 below] then his remedy is not simply to sit back, suffer as much delay as the Minister may inflict on him, and then on an appeal claim to win by default. After 90 days have elapsed, he may launch an appeal to this Court and thereby bring the matter to a head: see the Act, subsection 169(1). If he does not choose to do so, he cannot complain later about the delay. This ground of appeal has no merit.

Note 5: Bolton v. The Queen, 96 D.T.C. 6413 (F.C.A.).

Note 6: The Act, subsection 165(3).

[23]       In my opinion, the cases cited earlier - Bolton, James, Addison and Solomons - establish precisely and comprehensively the specific and limited remedies available to taxpayers when they think the Minister is taking too long to act on a confirmation under the Act.

[24]       Consequently, I think it is plain and obvious that the considerations and principles the Federal Court of Appeal may have reviewed in Society Promoting Environmental Conservation v. Canada (Attorney General), 2003 FCA 239, have no place in this case since that 2003 judgment deals with facts that are completely different from those of concern to us: the possible vacating of a Ministerial expropriation order pursuant to a flawed consultation process.

[25]       To return to the circumstances of the case at hand, we find, first, that despite all the relief set out by the applicants in their application, no mandamus is sought. The extremely broad language of heads of relief (f) and (h) (see paragraph 11, supra) cannot and should not be construed in the circumstances as contemplating relief in the form of mandamus. It must be assumed that the applicants or their counsel have been aware of this mandamus procedure since Bolton and James, and it was up to them to state specifically in their application what relief and remedies they are seeking, in accordance with rule 301 of the Federal Courts Rules (the Rules). It is not the Court's function to advise the applicants on these matters.

[26]       Second, the other recourse contemplated by Bolton and James, an appeal to the TCC, was taken in this case by the applicants.

[27]       The applicants, in the Atherton affidavit, utterly fail to explain - other than why they did not feel the need to force the Minister to act, via this Court - why such confirmation by the Minister would have changed the situation and enabled them to adequately discharge their burden of proof in the TCC.

[28]       Another decision of the Federal Court of Appeal, Webster v. Canada, [2003] F.C.J. No. 1569, dated October 21, 2003 (Webster), also shows that an alleged breach of procedural fairness in the objection/confirmation process will not bring this Court to vacate an assessment.

[29]       In Webster, the applicant had received the Minister's confirmation decision and had filed an appeal of that decision in the TCC. However, while that appeal was still pending, Mr. Webster discovered that the Minister's official who had considered his objections might have had access to information that he had been denied.

[30]       At paragraph 10 of its reasons, the Court summarized Mr. Webster's approach:

10.            It is argued for Mr. Webster that this was a breach of natural justice for which he is entitled to a remedy, and that the only Court with the authority to give him a remedy for that breach is the Federal Court. The remedy he seeks is an order quashing the confirmation of his assessments, and requiring his objection to be reconsidered. It is common ground that the Tax Court cannot give him that remedy, because its jurisdiction is limited to determining whether the assessments are correct in law.

[31]       Later, at paragraphs 20 and 21, the Federal Court of Appeal held that it lacked jurisdiction to order that the Minister's confirmation be vacated:

20.            . . . Whatever flaws there may have been in the objection process in Mr. Webster's case, it resulted in a decision that can be challenged in only one way, and that is by an appeal to the Tax Court.

21.            I would add that the right to appeal an income tax assessment to the Tax Court is a substantial one. The mandate of the Tax Court is to decide, on the basis of a trial at which both parties will have the opportunity to present documentary and oral evidence, whether the assessments under appeal are correct in law, or not. If the assessments are incorrect as a matter of law, it will not matter whether the objection process was flawed. If they are correct, they must stand even if the objection process was flawed.

[32]       Scott Slipp Nissan Ltd. v. Canada (Attorney General), 2004 FC 1096 (Scott) is an example where the Court may intervene by way of judicial review in favour of a taxpayer when the taxpayer is not seeking to have assessments vacated but is instead seeking disclosure in order to make the as-yet uncompleted objection process more transparent.

[33]       At paragraphs 13 to 15, and 17 and 18 of the Scott decision, Mr. Justice O'Keefe of this Court establishes the appropriate distinction:

[13]          Although this Court has no jurisdiction over proceedings framed as judicial review that ultimately seek to have tax assessments vacated or reviewed, this application is not a disguised attempt by SSNL to challenge its assessments. Rather, SSNL is challenging CCRA's refusal to provide complete disclosure of its audit file, which SSNL argues is needed to file and pursue meaningful Notices of Objection. While not expressing an opinion on the propriety of CCRA's non-disclosure of third party information under the Excise Tax Act, supra, I am of the view that SSNL should be provided a forum to argue that CCRA's decision was unlawful. This Court is a forum that is available to SSNL.

[14]          I am not satisfied that this Court lacks jurisdiction to hear this judicial review application by reason of section 18.5 of the Federal Courts Act, supra. The decision challenged by SSNL is CCRA's incomplete disclosure of its audit file, not the substance of the May 2003 assessments. Section 18.5 precludes judicial review in this Court of a decision "to the extent that it may be so appealed" (to use the language of the statute) to, inter alia, the Tax Court of Canada. The Excise Tax Act, supra, does not expressly provide for an appeal of the Minister's disclosure decision to the Tax Court of Canada, nor is the non-disclosure decision so intertwined with SSNL's assessments that any challenge to the disclosure decision is in substance an attack of the assessments.

[15]          It is clear that I disagree with the Attorney General's position that documentary disclosure must be obtained by proceeding on appeal to the Tax Court of Canada. The Attorney General's view of the statutory scheme would force taxpayers to proceed with a potentially uninformed Notice of Objection process which would have little or no chance of success, simply to be able to proceed to the Tax Court of Canada's documentary disclosure procedures. In my view, to adopt such an interpretation of the statutory scheme would detract from the intended purpose of the Notice of Objection stage, which is to provide a taxpayer with a meaningful opportunity to persuade the Minister of National Revenue that its assessment should be vacated or a reassessment made. . . .

. . .

[17]          In this case, the Minister has made no decision on SSNL's Notices of Objection. This application for judicial review was filed before SSNL's right to appeal to the Tax Court of Canada arose and therefore, before (in the words of Sharlow J.A.) "the objection process was complete".

[18]          By ruling that as soon as a right of appeal to the Tax Court of Canada arises, a taxpayer is obliged to pursue that appeal instead of seeking further disclosure by means of judicial review could allow the Minister to by-pass the very purpose of the objection stage of the scheme. . . .

[34]       Accordingly, for the foregoing reasons, it seems plain and obvious to me that this Court does not have jurisdiction to vacate the notice of assessment as that relief is formulated in paragraph (b) of the relief sought in the application (see supra, paragraph 11). Similarly, and for the same reasons, this Court does not have jurisdiction to do indirectly what it cannot do directly, i.e., to order a definitive end to the assessment and collection process in relation to the applicants, or to definitively bar any legal proceeding or recovery action. Furthermore, it must be said that no bar to the collection of the tax debt resulting from the applicants' investment in Système ALH can be granted to them here since that would effectively eliminate the tax liability under the Act resulting from their assessments for the 1988 taxation year. Clearly, a taxpayer's tax liability under the Act can be challenged in only one way: by way of objection and appeal to the TCC in accordance with sections 165 and 169 of the Act.

[35]       Accordingly, this Court has no jurisdiction to grant heads (a) and (e) of the relief sought in the application.

[36]       Therefore, heads (a), (b) and (e) should clearly be struck out.

[37]       As to head (c), the extinction by prescription of the amounts claimed from the applicants under the notices of reassessment for the 1988 taxation year and other years concerned following the investment by the applicants in ALH, this plainly and obviously discloses no reasonable cause of action.

[38]       As the respondents state in their motion record, the principles of Markevich v. Canada, [2003] 1 S.C.R. 94, apply to this case.

[39]       Consequently, the recovery of the tax debts under the Act is prescribed six years after the occurrence of the "cause of action", in accordance with section 32 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, as amended. The cause of action of the tax debts resulting from an assessment occurs at the expiration of the period of stay of recovery measures on the debt in question, prescribed by section 225.1 of the Act. Under subsection 225.1(3) of the Act, when a taxpayer has appealed an assessment in the TCC, the Minister shall not take any action to recover the amounts in dispute in that appeal before the day of mailing of a copy of the TCC decision to the taxpayer or, where applicable, the day on which the taxpayer discontinues the appeal, whichever is earlier. All of the applicants, with the exception of Marguerite Dumais, appealed to the TCC. To date, no decision has been made on those appeals, and none of the applicants has discontinued their appeal, all of which are still pending before the TCC. It should therefore be clearly stated that the six-year limitation period that would be applicable to the collection of the debts arising out of the applicants' assessments under section 32 of the Crown Liability and Proceedings Act has not yet begun to run, on the ground that no cause of action has so far occurred.

[40]       Head (c) of the relief sought in the application should accordingly be struck in full.

[41]       As to head (d), an award of damages to the applicants for the harm caused by the failure of the Minister and the CCRA to make a decision, this Court is without jurisdiction to do so on this application, since it is plain and obvious that the relief this Court can grant on an application for judicial review is limited to the relief available under subsection 18.1(3) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, which does not include damages. The Federal Court, therefore, has no jurisdiction to award damages to the applicants on their application. (See, inter alia, Tremblay v. Canada, [2004] F.C.J. 787, paragraphs 28 to 30 (F.C.A.)).

[42]       Head (d) of the relief sought in the application should likewise be struck.

[43]       It should be noted here that for the reasons expressed by the respondents in their motion record, sections 7, 12 and 15 of the Charter have nothing to do with the applicants' proceeding. Those arguments are therefore dismissed and cannot alter the preceding or following findings of this Court.

[44]       As to heads (f) and (h) of the relief sought in the application, for the reasons previously set out in paragraph 25, these cannot stand, especially since if they remained in the applicants' application they would stand alone as relief, given that the other heads of relief have been struck out. Consequently, they would be in violation of rule 301. Heads (f) and (h) of the relief sought in the application will therefore be struck because they disclose no reasonable cause of action, and they are in this sense frivolous and an abuse of the process of the Court.

[45]       As to head (g), the applicants put it as follows: In the alternative, and without limitation of the foregoing, an order enjoining the respondents to cancel any interest running from the date of filing of the notices of objection.

[46]       In fact, with this head, the applicants are seeking an order enjoining the respondents to cancel, pursuant to subsection 220(3.1) of the Act, the interest incurred on any tax debt resulting from their investments in Système ALH since the date of filing of their notice of objection in relation to that investment.

[47]       The power to cancel or waive the interest or penalties payable by a taxpayer under subsection 220(3.1) of the Act is a discretionary power that belongs to the Minister.

[48]       The jurisdiction of the Federal Court, on an application for judicial review of a decision made under such a discretionary authority, is not to exercise that authority in place of its holder. The Court can only review the process that led to the decision and, where it thinks it has a reason to intervene, set aside the decision and refer the matter back to the decision-maker for that discretionary authority to be exercised again. Accordingly, it clearly follows that the additional relief - an order enjoining the respondents, pursuant to subsection 220(3.1) of the Act, to cancel the interest incurred on any tax debt resulting from their investments in Système ALH since the date of filing of their notice of objection in relation to that investment - is frivolous and vexatious, is an abuse of the process of the Court and discloses no reasonable cause of action.

[49]       Head (g) of the relief sought in the application should therefore be struck.

[50]       Since all of the relief sought in the application should be struck, the respondents' motion to strike should be allowed, with costs, and the applicants' application should be struck in full.

[51]       In view of this main determination, it is unnecessary to consider the other relief set out either in the respondents' motion to strike or in the applicants' motion to amend.

[52]       An order shall issue accordingly.

                       Richard Morneau

                          Prothonotary

Montréal, Quebec

May 31, 2005

Certified true translation

Peter Douglas

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                            T-2096-04

STYLE OF CAUSE:                RICHARD ANGELL ET AL.

Applicants

and

MINISTER OF NATIONAL REVENUE, CANADA CUSTOMS AND REVENUE AGENCY, HER MAJESTY THE QUEEN IN RIGHT OF CANADA, AND ATTORNEY GENERAL OF CANADA

Respondents

PLACE OF HEARING:                      Montréal, Quebec

DATE OF HEARING:                        April 19, 2005

REASONS FOR ORDER:                Richard Morneau, Prothonotary

DATE OF REASONS:                       May 31, 2005

APPEARANCES:

Pierre Gonthier                          FOR THE APPLICANTS

Nader Khalil

Jean-R. Boivin

Pierre Cossette                          FOR THE RESPONDENTS

Philippe Dupuis

SOLICITORS OF RECORD:

Marchand Melançon Forget                   FOR THE APPLICANTS

Montréal, Quebec

John H. Sims, Q.C.                               FOR THE RESPONDENTS

Deputy Attorney General

of Canada