Date: 20000331
Docket: T-46-99
BETWEEN:
PETER NICK MANTAS and DIRK BOUWER,
Applicants,
- and -
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
DAWSON, J.
[1] This is an application for judicial review of a decision rendered by Mr. Harvey Beaulac, Director of the Ottawa Tax Services Office, denying the applicants relief from penalty and interest pursuant to subsection 281.1 of the Excise Tax Act, R.S.C. 1985, c. E-15.
[2] In their oral argument before the Court the applicants base their application for judicial review upon the ground that, in coming to his decision, Mr. Beaulac failed to address the main issue before him.
[3] The applicants assert that they entered into an agreement with an employee of the Department of National Revenue by which it was agreed that if they provided certain information and authorization and paid by a series of post-dated cheques the amount they owed on account of GST, all penalties and interest would be waived. They say that pursuant to that alleged agreement they provided the information and authorization and forwarded a series of post-dated cheques to the respondent. They point to the fact that they sent the cheques under cover of a letter which stated that the material was being delivered "in accordance with your request that they be received by August 14, 1997, otherwise we would incur penalty and interest."
[4] In coming to his decision Mr. Beaulac had before him the applicants' submissions and a "Fairness Fact Sheet" prepared by officials of the Department of National Revenue.
[5] The Fairness Fact Sheet detailed the reasons the applicants advanced for requesting a waiver of penalty and interest. Amongst other things the report stated "Client reiterates that once he was able to get through, he was allegedly advised by a Revenue Collections official . . . that if he filed all outstanding returns, with payment of 6 post-dated cheques, penalty and interest would not be incurred. Client advised that he complied. . . . Client feels that he was misled, as between August 1997 and June 1998, he believed that the arrears had been cleared up due to alleged representations by [an employee of the Department]. . . . Client also makes reference to the "Application of the Fairness Provisions to Interest and Penalty" dated March 11, 1996, with respect to incorrect information given verbally and in written [sic] by the Department."
[6] The Fairness Fact Sheet went on to set out information contained in the Department's records: "As per the ACES Diary, the Collections officer . . . gave the client clear legal warning, advised of Section 283, and advised of penalty and interest. Moreover, at no time did the officer advise client that penalty and interest would not be assessed for late filing/remitting." [emphasis in the original].
[7] Mr. Beaulac's decision is not lengthy. In it he states, amongst other things, "Moreover, given that you have not substantiated that the Department erred and/or was primarily responsible for any delay with respect to accruing interest on your account, no relief can be provided under the criterion of 3Department Error3.".
[8] At the outset of the hearing before me the applicants and counsel for the Minister agreed upon the standard of review to be applied on this application. That standard was recently restated by Justice Reed of this Court in Revivo v. Canada (Revenue - Taxation), [2000] F.C.J. No. 40, at paragraph 6, as follows:
| The nature of the Court's jurisdiction when reviewing decisions of the Fairness Committee was described by Mr. Justice Rouleau in Kaiser v. Minister of National Revenue (1995), 93 F.T.R. 66 at 68, quoting McIntyre J. in Re Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2">[1982] 2 S.C.R. 2 at 7: |
| . . . It is, as well, a clearly-established rule that courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the 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, the courts should not interfere . . . (emphasis added) |
[9] Mr. Beaulac filed an affidavit in opposition to the application. He was not cross-examined on that affidavit. In it he set out the facts and matters that he considered in assessing the applicants' request. I am satisfied that they were the relevant facts and criteria.
[10] Mr. Beaulac's unchallenged testimony was that he carefully considered the request for waiver and the allegation of representations made by an employee of the Department with respect to the waiver of interest and penalty.
[11] Implicit in the statement that the applicants had not substantiated that the Department had erred is the conclusion that Mr. Beaulac did not accept that a settlement was reached as asserted by the applicants. I am unable to conclude that this was an erroneous conclusion or one made in a perverse or capricious manner or one made upon considerations "irrelevant or extraneous to the statutory purpose".
[12] I cannot find any basis which would justify setting aside the decision.
[13] For these reasons the application for judicial review is dismissed.
OTTAWA, Ontario
March 31, 2000
Judge
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