Delta Industrial Supply Ltd. v. Canada (Attorney General), docket T-2114-95

Date: 19971208

Docket: T-2114-95

BETWEEN:

     DELTA INDUSTRIAL SUPPLY LTD.,

     Applicant,

     - and -

     ATTORNEY GENERAL FOR CANADA,

     Respondent.

     REASONS FOR JUDGMENT

CAMPBELL, J.

     Let the attached transcript of my Reasons for Judgment delivered orally from the bench at Winnipeg, Manitoba, on October 1, 1997, now edited, be filed to comply with section 51 of the Federal Court Act.

                                                  Judge

OTTAWA, ONTARIO

December 8, 1997

[1]          This application is an attack on a decision imposing a usual penalty on the applicant for failure to remit employee deductions to Revenue Canada by the due date. The applicant"s excuse was that he was short-staffed and thus mailed the remittance, which admittedly did not reach Revenue Canada as required by law. The argument is that, considering the excuse provided, the failure to remit does not warrant the discretionary penalty imposed.

[2]          The argument relates to two points raised by the contents of the affidavit the decision maker provided for this application. The first point is that, according to the decision maker, the applicant"s previous remittance history was considered in reaching the decision. In particular, consideration was given to the fact that the applicant was warned, when given consideration in the past for a similar failure, that in the future he would be subject to full penalty and interest charges. The argument is that it was improper to consider this history.

[3]          On this point, I think it is entirely fair and appropriate that the decision maker consider the history of remittances, including any failed remittances and any fairness considerations previously applied in deciding to relieve the applicant from paying any penalties. Indeed, I find specifically that it was fair, reasonable and quite appropriate to have considered the one particular instance where he was warned. To not consider that factor amounts to taking the case well out of the required context.

[4]          It is important to note that all the decision maker says in his affidavit is that in reaching his decision he considered "the following facts". There is no evidence and no implication that he put inordinate weight on this feature of the history, but as I have already said, I think he was quite right to consider it.

[5]          The second point concerns the conclusion reached that no extenuating circumstances exist to relieve the applicant from the usual penalty. This is certainly a conclusion the decision maker was empowered to reach, and the way the affidavit was framed, this finding was a factor used in concluding that no relief should be given from a

penalty normally imposed.

[6]          I see nothing wrong with this. There is no error on the face of this record. In fact, there is no evidence of bad faith, there is no evidence of a breach of any principle of natural justice. I do not think this decision maker considered any extraneous or relevant factors. I can understand how upset the applicant is about being penalized to such a large extent, but I think the Crown's argument is quite right, any sympathy I might have is quite irrelevant. I think the decision was made properly, I can not find an error and, accordingly, the application is dismissed.

     Douglas R. Campbell

     Judge