Date: 20021206
Docket: T-1417-02
Neutral citation: 2002 FCT 1260
In re the Income Tax Act
and
In re one or more assessments by the Minister of National Revenue
pursuant to one or more of the following statutes:
the Income Tax Act, the Canada Pension Plan and
the Employment Insurance Act
AGAINST:
FABRICATION GMCA INC.
291 rue du Carmel
Danville, Quebec
J0A 1A0
REASONS FOR ORDER
PINARD J.:
[1] This is a motion to review the order by this Court (per Tremblay-Lamer J.), made on August 30, 2002 and amended on September 3, 2002, giving authorization to proceed forthwith pursuant to s. 225.2(2) of the Income Tax Act.
[2] In Her Majesty the Queen v. Golbeck (September 20, 1990), A-613-90 and A-614-90, [1990] 2 C.T.C. 438, the Federal Court of Appeal set out the test for obtaining authorization to proceed forthwith as follows:
That question was not whether such an application by the Minister should only be considered after having been served on the taxpayer so as to give the taxpayer an opportunity to make representations. The question was whether, on the basis of the material put before the Court, it appeared that the Minister had reasonable grounds for believing that the taxpayer would waste, liquidate or otherwise transfer his assets so as to become less able to pay the amount assessed and thereby jeopardizing the Minister's debt.
[3] Later, in Canada (Minister of National Revenue) v. Services M.L. Marengère Inc. (November 29, 1999), T-460-99, [2000] 1 C.T.C. 229, this Court (per Lemieux J.) relying on earlier precedent noted inter alia the following, specifically with regard to the burden of proof in such an application for review:
(2) In terms of burden, an application under subsection 225.2(8) has the initial burden to show that there are reasonable grounds to doubt that the test required by subsection 225.2(2) has been met, that is, the collection of all or any part of the amounts assessed would be jeopardized by the delay in the collection. However, the ultimate burden is on the Crown to justify the jeopardy collection order granted on an ex parte basis.
(3) The evidence must show, on a balance of probability, that it is more likely than not that collection would be jeopardized by delay. The test is not whether the evidence shows beyond all reasonable doubt that the time allowed to the taxpayer would jeopardize the Minister's debt.
[4] Accordingly, I consider this matter with these basic principles clearly in mind. I should say that the additional facts put forward in the reply record filed by counsel for the Department of Justice Canada were only considered, as they should be, as they relate to the assessment of specific allegations made by the only deponent for the respondent, Fabrication GMCA Inc.
[5] After hearing counsel for the parties, considering the record and reviewing the evidence, including a careful reading of the transcripts of the cross-examinations of Ms. Bolduc and Mr. Murad, I consider that there was sufficient evidence before Tremblay-Lamer J. for her to conclude that on a balance of probabilities it was more likely than not that giving the respondent further time could compromise the collection in question. I come to this conclusion despite the inaccuracies disclosed in the cross-examination of Carole Bolduc on her original affidavit of August 27, 2002, taking into account in addition the detailed documentary evidence filed in support of Ms. Bolduc's affidavit. Based on this evidence, I consider that the Minister of National Revenue had "reasonable grounds for believing that the taxpayer would waste, liquidate or otherwise transfer his assets so as to become less able to pay the amount assessed and thereby jeopardizing the Minister's debt" (see Golbeck, supra). In my opinion, the Crown has fully met the ultimate burden of justifying the order in question made by Tremblay-Lamer J. ex parte.
[6] Consequently, this Court's intervention is not justified and the motion for review is dismissed with costs.
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"Yvon Pinard"
Judge
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OTTAWA, ONTARIO
December 6, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: T-1417-02
STYLE OF CAUSE: In re the Income Tax Act
and
In re one or more assessments by the Minister of National Revenue pursuant to one or more of the following statutes:
the Income Tax Act, the Canada Pension Plan and the Employment Insurance Act
AGAINST:
FABRICATION GMCA INC.
291 rue du Carmel
Danville, Quebec
J0A 1A0
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 3, 2002
REASONS FOR ORDER BY: Pinard J.
DATED: December 6, 2002
APPEARANCES:
Louis Sébastien FOR THE JUDGMENT CREDITOR
Veronica Romagnino
Jean El Masri FOR THE JUDGMENT DEBTOR
SOLICITORS OF RECORD:
MORRIS ROSENBERG FOR THE JUDGMENT CREDITOR
Deputy Attorney General of Canada
SEGAL, LAFOREST, LE MASRI FOR THE JUDGMENT DEBTOR
Montréal, Quebec
Date: 20021206
Docket: T-1417-02
Ottawa, Ontario, December 6, 2002
Before: Pinard J.
In re the Income Tax Act
and
In re one or more assessments by the Minister of National Revenue
pursuant to one or more of the following statutes:
the Income Tax Act, the Canada Pension Plan and
the Employment Insurance Act
AGAINST:
FABRICATION GMCA INC.
291 rue du Carmel
Danville, Quebec
J0A 1A0
Motion by the respondent for an order by the Court to:
(a) review the order made by this Court on August 30, 2002, and amended on September 3, 2002, giving authorization to proceed forthwith pursuant to s. 225.2(2) of the Income Tax Act;
(b) dismiss the [TRANSLATION] "motion for authorization to proceed forthwith" and exempt from compliance with ss. 70(4), 301, 304ss., 359ss. and 395 of the Federal Court Rules, 1998;
(c) any other order which the Court considers proper, including an order on extensions of time if applicable;
(d) award costs to the respondent on a solicitor and client basis.
[Subsections 225.2(2) and (8) of the Income Tax Act]
ORDER
The motion is dismissed with costs.
| |
"Yvon Pinard"
Judge
|
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
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