Date: 20101207
Docket: T-565-09
Citation: 2010 FC 1235
Ottawa, Ontario, December 7,
2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
PATRICK
NICHOLLS
Applicant
and
CANADA (REVENUE AGENCY)
and MINISTER OF NATIONAL REVENUE
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
APPLICATION
[1]
This
is an application for judicial review of a decision by the Canada Revenue
Agency (CRA) dated March 9, 2009 (Decision) not to extend the time limit within
which the Applicant could file notice under subsection 122.62(2) of the Income
Tax Act (Act) to be considered as an eligible individual to receive the
Canada Child Tax Benefit (CCTB) for certain months during which CRA was
statute-barred from recovering CCTB benefits already paid to the Applicant’s estranged
wife for their children, Charles and Penny, during the same period.
BACKGROUND
[2]
The
Applicant, who is self-represented, has not provided a clear factual background
setting out the relevant history and nature of this dispute. My review of the
record suggests that the Respondents’ account of what has happened and the
framing of the issues are accurate.
[3]
In
an application form received by the CRA on August 16, 2006, the Applicant
applied for retroactive CCTB payments for his children, Penny and Charles. He
claimed benefits for Penny from June 25, 2005 and for Charles from October 17,
2001 to the date of his application.
[4]
Prior
to his application, Tylaine Nicholls, Mr. Nicholls’s estranged wife, had been
the eligible individual for the two children and had been receiving CCTB
payments.
[5]
As
the period for which the Applicant requested CCTB payments overlapped the
period for which Mrs. Nicholls had received payments, questionnaires regarding
the residency and primary care of Penny and Charles were sent to both
individuals.
[6]
As
a result of the questionnaire and documents submitted by the Applicant, the CRA
granted him retroactive benefits for both children for 11 months back to
September 2005. The CRA held off on deciding on the balance of the Applicant’s
request until it received the proof of citizenship and residency it had
requested from him and until it heard back from Mrs. Nicholls regarding the
questionnaire it had sent her.
[7]
With
a letter dated November 28, 2006, the Applicant provided the CRA the requested
proof of citizenship and residency. In that same letter, he requested various
additional months of retroactive CCTB benefits for both children, which were
summer vacation months or, in one case, a three-month period during which he
claimed that Penny had stayed with him while Mrs. Nicholls had been travelling.
[8]
In
a letter dated March 26, 2007, the CRA allowed the Applicant’s claim for
retroactive CCTB benefits back to the first months for which the CCTB payments
originally issued to Mrs. Nicholls could still be recovered from her by the
CRA, namely, July 2005 for Penny and July 2004 for Charles. This decision gave the
Applicant all of the CCTB payments he had originally requested in respect of
Penny.
[9]
As
the CRA was statute-barred from reassessing Mrs. Nicholls for CCTB payments
that it had made to her before July 2004 in respect of Charles, it denied the
Applicant’s request for payments in respect of Charles for months prior to July
2004.
[10]
After
several letters from the Applicant reiterating his request for additional
retroactive CCTB payments beyond those already credited, the CRA repeated its
position in letters dated July 3, 2007.
[11]
The
Applicant filed a Notice of Application for judicial review with this Court in
April 2008. The application was discontinued when the CRA agreed to conduct a
fresh review, taking into consideration whether a debt against Mrs. Nicholls
could be established for a period that would otherwise be statute-barred on the
basis that she made a misrepresentation in her tax filings.
[12]
The
CRA official assigned to conduct the fresh review, Ms. Shirley Geller, reviewed
all materials previously provided by the Applicant. The Applicant was also
invited to send additional materials and make further submissions if he so
desired. The Applicant did not provide any further materials.
[13]
In
considering whether Mrs. Nicholls’s statute-barred years could be reopened, Ms.
Geller reviewed materials submitted by Mrs. Nicholls in support of her Notice
of Objection to amounts the CRA was seeking from her as a result of the
retroactive payments already made to the Applicant. Mrs. Nicholls provided
documentation to suggest that the children had lived with her during certain
months in dispute and that she and the Applicant had had an agreement that she
would continue to claim the CCTB payments for Penny and Charles once they began
living with the Applicant.
[14]
Ms.
Geller concluded that it was not clear that the CRA would be able to meet the
burden of demonstrating that Mrs. Nicholls made a “misrepresentation
attributable to neglect, carelessness or wilful default” in failing to advise
the CRA that the children had moved in with the Applicant. As a result, she
concluded that the CRA ought not to exercise the Minister’s discretion to grant
the Applicant further retroactive benefits beyond those he had already been
paid.
[15]
With
respect to the individual months for which the Applicant was requesting CCTB
payments, the CRA allowed one month, August 2004, on the basis of the Federal
Court of Appeal’s decision in Matte v. Canada, 2003 FCA 19, in January
2003, but refused to exercise its discretion for the remaining months as they
were claimed prior to the Matte decision and/or the CRA was
statute-barred and could not establish a debt against Mrs. Nicholls for those
months.
[16]
In
a letter dated March 9, 2009, executed by Ms. Kaeding, Ms. Geller’s supervisor,
the CRA informed the Applicant that it was exercising its discretion to allow
him only one additional CCTB payment for August 2004 and set out detailed
reasons for its Decision.
[17]
The
Applicant brought the present application for judicial review on or about April
8, 2009.
[18]
On
May 4, 2009, the Applicant served on the Respondents an affidavit dated May 4,
2009, sworn by him in support of his application for judicial review and attaching
two exhibits that were not submitted to the CRA prior to its Decision:
a.
Exhibit
“D” to the Affidavit – one-page excerpt from a preliminary hearing between Mr.
Nicholls and Her Majesty the Queen, dated May 5, 2003; and
b.
Exhibit
“H” to the Affidavit – an endorsement of the Ontario Court of Justice from a
proceeding between Mr. and Mrs. Nicholls, dated May 29, 2008.
[19]
On
the same day, the Applicant also served on the Respondents an affidavit dated
May 4, 2009 and sworn by Penny Nicholls, and an affidavit dated May 9, 2009 and
sworn by Charles Nicholls. Neither of these two documents were before the CRA
when it made the Decision under review.
THE DECISION
[20]
Ms.
Geller reviewed all of the materials filed and concluded that CRA would not be
able to meet the burden of demonstrating that Mrs. Nicholls had made “a
misrepresentation attributable to neglect, carelessness or wilful default” in
failing to advise the CRA that Penny and Charles had moved in with Mr.
Nicholls. As a result, she concluded that CRA ought not to exercise the
Minister’s discretion under subsection 122.62(2) of the Act to grant the
Applicant an extension for further retroactive benefits beyond those he had
already been paid.
[21]
With
respect to the individual months for which the Applicant had claimed CCTB
benefits, the CRA allowed one month, August 2004, on the basis of the Federal
Court of Appeal’s decision in Matte, above, but refused to exercise its
discretion for the other individual months claimed because they were prior to Matte
and should, in any event, not be granted to the Applicant because CRA was
statute-barred and could not establish a debt against Mrs. Nicholls for those
months.
RELEVANT STATUTORY
PROVISIONS
[22]
The
following provisions of the Act are applicable to the present application:
|
122.62
(1) For the purposes of this subdivision, a person may be
considered to be an eligible individual in respect of a particular qualified
dependant at the beginning of a month only if the person has, no later than
11 months after the end of the month, filed with the Minister a notice in
prescribed form containing prescribed information.
(2) The
Minister may at any time extend the time for filing a notice under subsection
122.62(1).
…
152 (4)
The Minister may at any time make an assessment, reassessment or additional
assessment of tax for a taxation year, interest or penalties, if any, payable
under this Part by a taxpayer or notify in writing any person by whom a
return of income for a taxation year has been filed that no tax is payable
for the year, except that an assessment, reassessment or additional
assessment may be made after the taxpayer’s normal reassessment period in
respect of the year only if
(a) the taxpayer or
person filing the return
(i) has made any misrepresentation
that is attributable to neglect, carelessness or wilful default or has
committed any fraud in filing the return or in supplying any information
under this Act, or
|
122.62(1)
Pour l’application de la présente sous-section, une personne ne peut être
considérée comme un particulier admissible à l’égard d’une personne à charge
admissible au début d’un mois que si elle a présenté un avis au ministre, sur
formulaire prescrit contenant les renseignements prescrits, au plus tard onze
mois après la fin du mois.
(2) Le
ministre peut, en tout temps, proroger le délai prévu au paragraphe (1).
…
152 (4)
Le ministre peut établir une cotisation, une nouvelle cotisation ou une
cotisation supplémentaire concernant l’impôt pour une année d’imposition, ainsi
que les intérêts ou les pénalités, qui sont payables par un contribuable en
vertu de la présente partie ou donner avis par écrit qu’aucun impôt n’est
payable pour l’année à toute personne qui a produit une déclaration de revenu
pour une année d’imposition. Pareille cotisation ne peut être établie après
l’expiration de la période normale de nouvelle cotisation applicable au
contribuable pour l’année que dans les cas suivants :
a)
le contribuable ou la personne produisant la déclaration :
(i) soit a fait une présentation erronée des
faits, par négligence, inattention ou omission volontaire, ou a commis
quelque fraude en produisant la déclaration ou en fournissant quelque
renseignement sous le régime de la présente loi,
|
ISSUES RAISED
[23]
The
issues raised, as set out in paragraph 52 of the Applicant’s Memorandum of Fact
and Law, are as follows:
a.
Should
the Decision made in bad faith be set aside?
b.
Did
the Minister exceed the authority to pay and recover CCTB?
c.
If
not, can the Applicant request derivative reassessment?
d.
If
not, then when is the other individual statute-barred?
e.
If
so, does Matte apply?
f.
Is
proof of material misrepresentation beyond normal reassessment met?
g.
Is
the Applicant’s estranged wife, pursuant to Rule 399, in contempt?
h.
Is
the Minister unjustly enriched?
STANDARD OF REVIEW
[24]
Subsection
122.62(1) of the Act provides that a person may be considered an eligible
individual to receive CCTB payments in respect of a particular qualified dependant
at the beginning of a month only if that person has, no later than 11 months
after the end of the particular month, filed with the Minister a notice in
prescribed form containing prescribed information. Subsection 122.62(2)
provides that the Minister may at any time extend the time for filing a
notice under subsection (1).
[25]
The
Federal Court of Appeal has consistently found similarly worded provisions to
confer discretionary decision-making powers on the Minister and, consequently,
to be reviewable on the standard of reasonableness. The reasoning in both Telfer
v. Canada (Revenue Agency), 2009 FCA 23 and Lanno v. Canada (Customs and
Revenue Agency), 2005 FCA 153 are, in my view, applicable to the Decision
under review.
[26]
The
Supreme Court of Canada in Dunsmuir
v. New Brunswick,
2008 SCC 9,
held that the standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to the particular
question before the court is well-settled by past jurisprudence, the reviewing
court may adopt that standard of review. Only where this search proves
fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
[27]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph 47. Put another way, the Court
should intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
[28]
The
Applicant’s allegations that the Minister took into account irrelevant
information and ignored relevant materials, failed to give adequate reasons, had
a reasonable apprehension of bias and failed to carry out the duty of
procedural fairness are questions of law reviewable on a standard of
correctness. See Matte, above.
ANALYSIS
General
Problems
[29]
Mr.
Nicholls has represented himself in an energetic and resourceful manner. He
came to the hearing in Toronto on September 28, 2010
with a dense, twenty-six page script, most of which he read out to the Court.
In this script, he raised some new arguments and issues that did not appear in
the twenty-six page Memorandum of Fact and Law that he had already filed with
the Court and served upon the Respondents.
[30]
In
both the written memorandum and the script, the Applicant’s arguments are often
convoluted and difficult to follow. He presents his case in a categorical style
that constantly courts opacity through his use of unconventional syntax and
grammar. He often cites legal principles without attribution or context, and he
often fails to distinguish between evidentiary fact, opinion and speculation.
All of this makes it very difficult to organize or assess the merits of his
position.
[31]
In
his (scripted) oral argument, the Applicant attempts to summarize his position
as follows:
a.
In
evidence the Minister attempts to do so here. The decision-maker fettered the
decision relying solely on guidelines or policy exacerbated by their secrecy or
unlawfulness. If she did look, she largely looked at, and gave weight to,
irrelevant information and ambiguous sections of the Act, as are 122.6 and
152(4), the former described as incredibly complex and nearly beyond
comprehension while the latter legislative provisions under scrutiny are a
mess.
b.
They do
not lend themselves to a literal interpretation leading to incongruous results.
Where ambiguity is in the sum of qualifying phrases that are sometimes found in
the Act only 152(4) adds anomaly. The reassessment is limited to the objection
and no license to reassess on any other ground. 152(4.2) is for error relief,
and has nothing to do with fairness. The absurd result in this case is that the
third party’s “normal reassessment period” had already expired before the
Minister made the determination.
c.
This does
not make sense. This case has necessitated a lengthy process of interpreting a
provision obviously enacted for a taxpayer’s benefit but lacking the elusive
characteristic of clarity. “Nice points of law” should not be the offspring of
imprecise legislation. There have been at least three different interpretations
of its application. Its application may have seemed clear to the
legislative drafters but certainly is not clear. The two constructs are
ambiguous speaking of a ‘necessary assessment’ to be correct in law, suggesting
that refunding child tax benefit to an eligible individual is not just a
discretionary exercise and that the meaning of “not been already allowed” meant
‘not already allowed to the taxpayer entitled’ or ‘not already correctly or lawfully
allowed’.
d.
The
Minister may issue a refund if it is satisfied that such a refund or reduction
would have been made if the return or request had been filed or made on time,
provided that then that necessary assessment is correct in law. Assessment must
be corrected even if a year is statute barred, although it does not change the
amount assessed for that year. If the Minister makes a discretionary error it
too must be corrected, if found to be unreasonable. It is only “a foolish
consistency [that] is the hobgoblin of little minds … .” wrote Ralph Waldo
Emerson. Where there is a sound and practical reason to assess in a consistent
manner that is not prohibited by statute, the Minister should not fear doing
so.”
e.
This Court
is warranted to intervene when the decision is based on a misapprehension of
the relevant facts. The Minister must assess according to law. In other words,
the Minister must not, and this Court must not, perpetuate an error in a future
year in order to arrive at a result consistent with a prior year in which
another taxpayer erred. Where the burden has shifted to the Minister, and the
Minister adduces no evidence whatsoever, the taxpayer is entitled to succeed.
The Minister produces no evidence that 122.62(2) was even invoked.
f.
The
Minister does not have a carte blanche in terms of setting out any assumption
which suite the Minister’s convenience. On being challenged by evidence in
chief he must be expected to present something more concrete than a simple
assumption that it is paid on the books. Generally speaking, bookkeeping
entries do not create reality. They are useful only to the extent that they
record or reflect reality, which they do not today in this case.
g.
Presumption
exists in favour of the taxpayer in taxing situations. A taxing provision could
be so arbitrary and unjust as to amount to an improper confiscation of property
rather than to a proper exercise of a taxation power. The Minister has a duty
to be careful and not to pay entitlements simultaneously, as the Minister has,
nor pay twice to the same person, as to Mr. Guest, or an ineligible individual
with no right to put those errors on an independent taxpayer’s back to make
amends for those types of errors.
h.
The
Minister with proof has a duty to reassess in cases of misrepresentation, if
only to assist in recovery of the misdirected Crown Debt having been abrogated
by the Minister. The decision maker “must understand correctly the law that
regulates his or her decision-making power and must give effect to it and has
not done so here. Ms. Keading (sic) has misunderstood legal terms and
incorrectly evaluated facts that are essential for decision whether or not she
has certain powers or exceeds authority.
i.
The decision
must be set aside. Likewise if the decision unlawfully sub delegates, errs in
fact or law, ignores relevant considerations or takes irrelevant considerations
into account, judicial review is generally allowed. The decision is
unreasonable; in defiance of logic and accepted moral standards that no
sensible person who had applied his mind to the question could have arrived at
it. Even though an authority may establish internal guidelines, it should be
prepared to make exceptions on the basis of every individual case. An Act of
Parliament may subject the making of a certain decision to a procedure. The
rules of natural justice require the decision maker to approach the process
with ‘fairness’. Bias deals with the appearance of bias: “Justice must be seen
to be done.”
j.
The
requirement is that the person gets the chance to present his or her case. If
the Applicant has certain legitimate expectations, promised a benefit, it would
be unfair to break the promise, even if there are public interest grounds for
his breaking it. Ms. Geller has a tone, an appearance of female presumption tainting
Ms. Keading’s (sic) decision. Her outcome is not defensible in respect
of the facts and law, cannot withstand probing examination, is based on false
assumption, as it is, lowers the standard of reasonableness to correctness. It
is well established that procedural fairness is reviewable on a correctness
standard.
k.
Her
reasons are improper, inadequate and unintelligible. The assumptions are not
justified; they do not of themselves support the assessment decision. The
Applicant as claimant had a legitimate expectation that a certain result would
be reached in this, and submits that fairness may require more extensive
procedural rights than would otherwise be accorded. The Minister cannot plead
an alternative assumption when to do so would fundamentally alter the basis on
which his assessment was based.
l.
In fact
the Crown renders it as an entirely new assessment. If the Crown alleges a fact
that is not among the facts assumed by the Minister, the onus of proof lies
with the Crown. This tempers the unique relationship between the Minister of
National Revenue, its Agency, and the Department of Justice in tax matters. If
extra words are added to the Act to justify the assumption, they must be
struck. In this situation, this Honourable Court’s intervention would be
appropriate.
m.
The
Minister demonstrably fails to recognize certain facts for lack of serious and
genuine inquiry within assumptions, the onus on the Minister, that may shift
and the court may then relieve the Minister of that burden. When the Minister has
no assumption the case goes to the cause and the Minister should know
discretion here is duty in disguise. The Minister has a duty to assess and must
then send notice of that assessment for any year under subsection 150(2);
failure to do so is dereliction in that duty. The Minister must assess to
collect or refund.
n.
Where the
Act says “Shall” the Minister must, has no choice, and is compelled to carry
out the intention of Parliament. This Honourable Court, if intervention is
warranted, may set aside the decision, make declaration about the discretionary
decisions within your jurisdiction, or substitute the decision that should have
been made, determining all or some of the entitlement periods requested. As
well, to apply mandamus and have the Minister release the held back
claim amount. If mandamus is requested than be satisfied that this case
merits that fairly rare, discretionary tool for remedy; however the Court has
no discretion to refuse mandamus when it is the only means of securing
performance of a ministerial duty. The Applicant here meets the 7 conditions to
satisfy for mandamus to issue:
i.
there must
be a public legal duty to act under the circumstances;
ii.
the duty
must be owed to the applicant;
iii.
there must
be a clear right to performance of that duty, and in particular the applicant
must have satisfied all conditions precedent giving rise to the duty;
iv.
no other
adequate remedy is available to the applicant;
v.
the order
sought must have some practical effect;
vi.
in the
exercise of its discretion, the court must find no equitable bar to the relief sought;
and,
vii.
on a
balance of convenience, an order of mandamus should issue.
o.
The
decision may be set aside for any one or more of these a to z reasons:
i.
The
Minister has a duty to refund child tax credit;
ii.
The
Minister did fully not accomplish assessment before exhausted;
iii.
The
Minister cannot assign the benefit thus it was unlawfully conveyed;
iv.
The
Minister has no authority to recover the benefit once paid;
v.
The
Minister cannot be unjustly enriched;
vi.
The
Minister cannot make a second party creditor to a first or third;
vii.
The
Minister’s failed to disclose fully;
viii.
The
Minister cannot have a change of heart;
ix.
The
signing delegate was not authorized to sign;
x.
The
decision is not fresh;
xi.
The Crown
added unnecessary complexing issues;
xii.
The best
interests of children is fatally absent;
xiii.
The
decision relied on irrelevant and immaterial evidence;
xiv.
The
decision did not rely on relevant and material evidence;
xv.
The
decision relies, in part, on the female presumption, rebutted;
xvi.
The
signing delegate did not investigate first hand or thoroughly;
xvii.
The
delegate made errors in law and of fact relying on false assumptions;
xviii.
The
delegate fettered her decision relying on invalid policy;
xix.
The
delegate, in part, relied on a secret, thus unlawful, policy in Matte;
xx.
The
delegate waived or forgave “notices of change” in error;
xxi.
The
reviewer failed to make out the case to meet, suppressing disclosure;
xxii.
The
reviewer was biased, albeit taken in by misrepresentation and ruse;
xxiii.
The
reviewer treated the applicant differently than other taxpayers;
xxiv.
The
reviewer breached legitimate expectation for fresh one issue decision;
xxv.
The
decision is illegal, irrational and lacks procedural fairness;
xxvi.
The
Minister is liable to repay on overpayment to the correct individual.
p.
The issue
in this case is simply stated: the Government seeks to avoid paying the whole
amount of a refund otherwise wholly owing to a taxpayer on the basis of a
claimed one-year limitation period which it infers from the language of the
taxing statute. For a Court so to limit a taxpayer’s right to what would
otherwise be his own money would necessitate a clear statutory directive
indeed. Where an otherwise constitutional or intra vires statute or regulation
is applied in error to a person to whom on its true construction it does not
apply, the general principles of restitution for money paid under a misstate
should be applied, and, subject to equitable considerations, should favour
recovery.
q.
The
Supreme Court emphasized that benefits-conferring legislation ought to be interpreted
in a broad and generous manner and that any doubt arising from the language of
such legislation ought to be resolved in favour of the claimant. It should also
be noted that, I (sic) this Honourable Court’s view, the provisions in
question should be read generously in favour of enabling the children to
receive the child tax benefit, which they have not, intercepted by the
fraudulent third party.
r.
For me
this is about my children’s securing the Canada Child Tax Benefit funds they
are entitled misdirected in error to other than their primary care giver at the
times claimed. Funds still needed to support these children in University. I
argue here today for them, not party to the judicial review, impacted
significantly by the outcome.
s.
As it is
the fourth review it would be pointless to send this back for a redetermination
because the Minister’s decision is based on false assumptions. I conclude now
requesting that if costs are awarded to the cause, they be a lump sum award
after submissions in writing reminded that secret policies et al are
inconsistent with a free and democratic society.
[32]
Notably
missing from the Applicant’s presentation is any real focus upon the Decision
itself, the reasons contained in the Decision, and the statutory authority and
legal principles cited and relied upon in the Decision. For example, the
Applicant states that the reasons for the Decision are unclear and inadequate.
However, my reading of the Decision suggests to me that this is not the case.
Whatever else may be wrong with the Decision, a lack of clarity or adequacy in
the reasons is not a problem. The Applicant has ascertained that “inadequate
reasons” is a recognized ground for judicial review, and he has thrown this
ground into the mix without showing or explaining what is inadequate or unclear
in the reasons. The same problem arises with respect to his allegations of bias
and other issues.
[33]
Also,
it would be unfair to allow the Applicant to raise new issues at the oral
hearing that were not set out in his written memorandum and for which he made
no effort to alert the Respondent in advance of the hearing. In effect, the
Applicant came to the oral hearing with a second written memorandum, some of
which can be connected to his earlier memorandum and some of which is new. He
simply read his second memorandum into the record. Examples of new issues are
the accusations against Mr. Diaz and the argument of tainting and bias based
upon those accusations as well as the inapplicability of subsections 122.62(1)
and (2) of the Act because of references to the Minister of National Health and
Welfare. The new best interests of the children argument is in the same
category but is, in any event, irrelevant because the Decision is not about
eligibility but is, rather, about when the Minister should accept a late filing.
[34]
The
new issues raised in the (scripted) oral presentation have not been properly
placed before the Respondent in a way that would allow for a fair response and
hence they are not properly before the Court as part of this application. Moreover,
having reviewed each of them in turn, it is my view that they do not establish
grounds for reviewable error.
[35]
My
general assessment of the case that the Applicant is attempting to make is that
he believes CRA was wrong or unreasonable not to allow him the CCTBs that he
claimed for the disputed period. He asserts that CRA incorrectly and
unreasonably invoked and applied a policy that prevented him receiving benefits
outside of the period stipulated in subsection 122.62(1) of the Act because
those benefits had already been paid to another caregiver and were, on the
advice of the Department of Justice, not recoverable from Mrs. Nicholls. The
Applicant says that he was not aware of this policy and so was prevented from
providing evidence and making submissions on point. He also says that CRA
displayed bias (reasonable apprehension and real bias) and that CRA neglected
relevant evidence and took into account irrelevant evidence. He says further
that the Decision based upon subsection 122.62(2) of the Act is wrong in law
and/or unreasonable.
The
Issues
[36]
The
Applicant has raised a number of issues for which there are simply no grounds
or evidence on the record before me.
[37]
For
example, there is no evidence or basis for the Applicant’s bald allegations of
bias, or procedural unfairness, or insufficient reasons. Nor is there any basis
for saying that the CRA took into account irrelevant evidence or failed to
consider relevant evidence. The Applicant simply disagrees with the Decision
and is seeking to have the Court set it aside and award him the CCTBs to which
the CRA decided he was not entitled.
[38]
This
approach can be seen in the Applicant’s attempts to introduce new evidence
before me that was not before the CRA when it made its Decision. The Applicant
was made aware of the issues the CRA had to decide and was given every
opportunity to make submissions and submit evidence to the CRA before it made
its Decision but simply refused or neglected to do so. He cannot make up for
that omission now by bringing new evidence before me and asking me to consider
matters de novo. See Palmer v. The Queen, [1980] 1 S.C.R. 759 at
page 775; Amchem Products Inc. v. British Columbia (Worker’s
Compensation Board), [1992] S.C.J. No. 110, 192 N.R. 390 at
paragraph 6; R. v. General Electric Capital Canada Inc., 2010 FCA 290 at
paragraph 11; and Franck Brunckhorst Co. v. Gainers Inc. et al., [1993]
F.C.J. No. 874 (C.A.) at paragraph 2.
[39]
In
addition, the Applicant has asked for remedies in this application that, for
reasons given by the Respondent, the Court has no power to grant. The Applicant
fails to ask for the relief which, conceptually at least, might be available to
him in this kind of application. For this reason alone, the Court would have to
dismiss the application.
[40]
My
review of the record suggests to me that the Applicant was not, contrary to his
present ascertions, ambushed by an unpublished policy and prevented from making
submissions on the issues that underlie the Decision. The Decision was the
second review and the record shows that the Applicant was aware that CRA’s
resistance to allowing him any further CCTBs turned upon the benefits already
allowed to Mrs. Nicholls during the disputed period, the difficulty of CRA’s
reclaiming those benefits from Mrs. Nicholls, and CRA’s view that the Applicant
should not now be granted benefits so long after the period stipulated in
subsection 122.62(1) when those benefits had already been paid to Mrs. Nicholls
for the children and were not recoverable because of subsection 152(4) of the
Act. These matters were squarely in front of the Applicant. His own failure to
claim the benefits within the stipulated time (a failure he did not explain)
was at the root of the problem. He was invited to make submissions and was free
to take legal advice and submit any evidence or argument he chose.
[41]
As
regards the merits, the only real issue before the Court is whether, on the
facts of this case, the Minister reasonably exercised his discretion under
subsection 122.62(2) of the Act not to extend in the Applicant’s favour the
time for the filing of notice under subsection 122.62(1) of the Act.
[42]
The
reasons for the Minister’s refusal are clearly set out in the Decision. The
gist of it is that the CRA concluded that it was statute-barred from recovering
CCTB payments made to Mrs. Nicholls prior to July 2004, and that the CRA would
not likely be successful in establishing a debt against Mrs. Nicholls for her
otherwise statute-barred years because it did not appear that she had made a
misrepresentation attributable to neglect, carelessness or wilful default.
[43]
This
brought into play the CRA’s policy that where CCTB payments have already been
made with respect to the same children the CRA will grant retroactive benefits
to an eligible individual in those situations only where it can recover the
payments made to the previous caregiver.
[44]
The
Applicant objects to the exercise of the subsection 122.62(2) discretion on the
grounds stated, but he has not established facts or authority to support any
allegation that the exercise of discretion was either incorrect or unreasonable
within the Dunsmuir range.
[45]
The
CRA did not determine which spouse was entitled to the CCTB payments during the
period in dispute. It simply concluded that the statute-barred payments already
made could not be recovered from Mrs. Nicholls and that it could not prove that
Mrs. Nicholls had made a misrepresentation that is attributable to neglect,
carelessness or wilful neglect in failing to advise CRA that she was no longer
the eligible recipient for the period in question, so that it would not be
reasonable to accede to Mr. Nicholls’s full claim for payments going back to
2001.
[46]
In
assessing the reasonableness of the Decision in this case I think it also has
to be borne in mind that the Applicant waited until August 2006 to request CCTB
payments going back to October 2001, and he did not explain why he had waited
so long to do this if he felt he was the eligible person for those payments.
[47]
Given
the lack of statutory criteria for an exercise of discretion under subsection
122.62(2) of the Act, it is clear that Parliament left it to the Minister to
establish policies and criteria for the exercise of that discretion. That is
what has occurred in the present case.
[48]
The
Applicant has referred to various other sections of the Act and principles of
law that he feels should override subsections 122.62(1) and (2) and, in effect,
render them nugatory. He claims an overriding right to the CCTBs in question which
he says cannot be taken away by subsections 122.62(1) and (2). He further
claims that the CCTB payments already made to Mrs. Nicholls cannot be used to
deny his claim and that there are, in any event, other provisions of the Act
that CRA can use to recover payments inappropriately made, so that CRA is
obliged to address the entitlement issue. However, the Applicant has provided
no authority or principle, in my view, to support a finding that subsections
122.62(1) and (2) can somehow be left out of account and that the Minister was
either incorrect or unreasonable in establishing the policy applied in this
case or in applying it to the facts that were before the CRA. The Applicant
simply disagrees with the policy and the Decision and has attempted to invent
grounds (many of which are without authority or any evidentiary support) for
challenging the Decision.
[49]
Both
the Applicant and the Respondents agree that there is no case law regarding the
exercise of the Ministerial discretion under subsection 122.62(2) of the Act.
However, I think it is correct for the Respondent to point out that courts have
been reluctant to intervene where Parliament has granted discretionary
authority to an administrative decision-maker. In Telfer, above, the
Federal Court of Appeal addressed the discretion under section 220(3.1) of the
Act and decided that the unstructured nature of the Minister’s statutory power
meant that the court should not subject the decision-making process under that
section to close scrutiny. In other words, in such a situation, Parliament’s
intent is that the Minister should be left to establish suitable criteria for
the exercise of his or her discretion. In the present case, it cannot be said
that the CRA policy not to pay CCTB retroactively unless payments already made
to another caregiver can be recovered is an unreasonable basis for the exercise
of the discretion or that the discretion was applied unreasonably in this case.
The policy has a rational basis and it cannot be said that it was applied
unfairly or unreasonably in this case. The Applicant has allowed a situation to
develop whereby CCTBs were made to Mrs. Nicholls during a period of time when he
now says they should have been paid to him. As the Decision points out, the
Applicant has failed to explain why he allowed this situation to develop by not
claiming CCTBs at a time when he says he was entitled to them.
[50]
Both
parties have made written costs submissions which I have reviewed in their
entirety. It is my view that the Respondents should have their costs in
accordance with Column III of Tariff B and their disbursements, all in
accordance with their draft bill of costs.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application for judicial review is dismissed;
2.
The
Respondent shall have costs and disbursements in the amount of $3,973.99.
“James
Russell”
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