Date: 20120628
Docket: T-1374-11
Citation: 2012
FC 823
Ottawa, Ontario, June 28,
2012
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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TWENTIETH CENTURY FOX HOME
ENTERTAINMENT CANADA LIMITED
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA, THE MINISTER OF NATIONAL REVENUE AND
THE ASSISTANT COMMISSIONER, LEGISLATIVE POLICY AND REGULATORY AFFAIRS BRANCH
OF THE CANADA REVENUE AGENCY
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
I. OVERVIEW
[1]
This
judicial review is in respect of a decision by an Assistant Commissioner
[A/Commissioner] of the Canada Revenue Agency [CRA] refusing to recommend to
the Minister of National Revenue [Minister] that the Applicant’s request for
remission of Goods and Services Tax [GST] be granted. That decision effectively
ended the request for remission of GST.
[2]
The
A/Commissioner’s decision is part of a process which can lead to remission of
GST if ultimately granted by the Governor-in-Council in accordance with s.
23(2) of the Financial Administration Act, RSC 1985, c F-11 [FAA].
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23.
(2) The
Governor in Council may, on the recommendation of the appropriate Minister,
remit any tax or penalty, including any interest paid or payable thereon,
where the Governor in Council considers that the collection of the tax or the
enforcement of the penalty is unreasonable or unjust or that it is otherwise
in the public interest to remit the tax or penalty.
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23. (2) Sur recommandation du
ministre compétent, le gouverneur en conseil peut faire remise de toutes
taxes ou pénalités, ainsi que des intérêts afférents, s’il estime que leur
perception ou leur exécution forcée est déraisonnable ou injuste ou que,
d’une façon générale, l’intérêt public justifie la remise.
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II. BACKGROUND
[3]
The
Applicant is a subsidiary of Fox Entertainment Group Inc [Fox] and part of the
large US corporation,
The News Corporation. The Applicant’s business is to manufacture or purchase
videos and to sell them to retailers for re-sale to the public.
[4]
The
Applicant pays GST when it manufactures or purchases videos and collects GST
when it re-sells them. Monthly, the Applicant pays the CRA the net difference
between what it collects as GST and what it pays out in GST.
[5]
Due
to a computer error that over-counted the amount of GST it had collected,
between 2000 and 2005, the Applicant overpaid approximately $12.5 million of
GST to the CRA. The computer error was discovered and fixed by 2005.
[6]
In
May 2005 the Applicant filed for a rebate of the GST under s 261 of the Excise
Tax Act, RSC 1985, c E-15 [ETA] which legislation applies to GST. The
rebate application was for approximately $11.5 million of the $12.5 million
overpaid.
[7]
Section
261(3) provided for a two-year period from the date the GST was paid in which
to seek a rebate.
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261. (3) A rebate in respect of
an amount shall not be paid under subsection (1) to a person unless the
person files an application for the rebate within two years after the day the
amount was paid or remitted by the person.
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261. (3) Le remboursement n’est
versé que si la personne en fait la demande dans les deux ans suivant le
paiement ou le versement du montant.
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[8]
Therefore,
the Applicant was outside the rebate application period in respect to GST
overpaid before May 2003.
[9]
In
July 2005, the CRA paid the Applicant $11,424,627.86 out of the $11.5 million
rebate claimed. There is no issue in this proceeding with respect to the
$53,290 differential.
[10]
As
the Applicant was out of time in regards to rebate for the pre-2003 period, it
filed, on July 24, 2005, for remission [Remission Application] under the FAA
for the balance of overpayment in the amount of $1,060,556 (subsequently
revised to $1,004,916.38 [the Overpayment]).
[11]
Prior
to addressing the Remission Application, the CRA audited the Applicant including
the amount of GST that the Applicant had overpaid and for which it had claimed
and received a rebate. Three years later the CRA confirmed the computer error,
and the amount leading to the rebate (less $23,290).
[12]
Subsequent
to completion of the audit, the CRA dealt with the Remission Application. There
followed a series of internal memos (to which reference is made later) as the
CRA officials worked the file up to the CRA’s Remission Committee and then to
the A/Commissioner who made the decision pursuant to delegated powers.
[13]
The
A/Commissioner held powers delegated to him by the Commissioner who held
delegated power from the Minister. The Minister had delegated all the
Minister’s powers under any statute to the Commissioner who had in turn
sub-delegated that authority to the A/Commissioner.
[14]
In
making his decision, the A/Commissioner reviewed the following documents:
·
A
synopsis of the reasons for denying the Remission Application.
·
The
Remission Application itself.
·
An
internal memo of March 1, 2011 recommending against remission. That memo also
contained reference to remission policy that “circumstances beyond a person’s
control” did not include internal computer error; reference to the parent
company’s (News Corporation) revenues, assets and equity of $107 billion and
the Applicant’s assets of $75 to $194 million and gross revenues of $156 to
$247 million in four non-consecutive years. The conclusion was that $1 million
in overpayment was not a situation involving limited resources or the further
payment of taxes (as opposed to moneys foregone).
·
A
further memo of May 16, 2011 explaining that there was no responsibility on the
CRA to explain to the Applicant, a sophisticated company with tax
professionals, that a waiver request to keep the audit period open might have
been available to permit the recovery of a portion of the requested remission.
[15]
In
the A/Commissioner’s decision, he reiterated the rationale expressed in the
March 1, 2011 memo that a computer error was not a matter beyond a person’s
control and that the Applicant was not in a situation of limited financial
resources or of being required to pay additional taxes.
[16]
The
Applicant’s complaint about the A/Commissioner’s decision includes not
reviewing or considering:
·
A
memo comparing the Overpayment to the Applicant’s net revenues.
·
A
tax report which showed that a CRA official had made an error in the
Applicant’s 2004 net revenues.
·
The
Applicant’s 2010 or 2011 net revenues.
·
The
CRA’s Remission Guidelines.
·
The
rationale for changing a comparison of the Overpayment to net revenues to a
comparison of Overpayment to gross revenues (gross revenues show the company’s
size).
III. ISSUES
[17]
The
Applicant has raised the following issues:
a) That
an affidavit of a CRA official, McGlynn, should be struck because portions of
it are on information and belief.
b) That
the A/Commissioner did not have the authority to make the decision; such
authority rested in the Minister personally.
c) That
the discretion under the FAA is to be exercised reasonably which, on the facts,
was not done.
IV. ANALYSIS
A. Standard of Review
[18]
As
to the review of the decision not to recommend remission, the parties agree
that the standard of review is reasonableness. The Court agrees. The discretion
in this case is wide and policy based. It is a decision to which considerable
deference is owed (see Axa Canada Inc v Canada (Minister of National Revenue
- MNR), 2006 FC 17, 296 FTR 46 and Waycobah First Nation v Canada
(Attorney General), 2011 FCA 191, 421 NR 193 [Waycobah (FCA)]).
[19]
The
Applicant’s issues of striking portions of an affidavit involve the Court’s
Rules and the exercise of the Court’s discretion. The Applicant’s issue of the
scope of delegation of authority is a matter of law which goes to the root of
the jurisdiction to make the decision. The applicable standard of review is
correctness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at para 50).
B. Striking Portions of
Affidavit
[20]
The
Applicant objects to portions of the affidavit of a CRA official, McGlynn,
because it contains hearsay in breach of Rule 81(1) of the Federal Courts
Rules.
[21]
The
objection is that the affiant should have been Sterling who reports
to McGlynn. There is no suggestion of any prejudice to the Applicant, no
refusal to make Sterling available nor any real challenge to the
evidence said to be on information and belief. The Applicant has not advanced
any argument on prejudice, utility, weight or anything other than form.
[22]
Rule
81(1) must be considered in light of the Supreme Court’s acceptance of hearsay on
a principled basis (see Ethier v Canada (Royal
Canadian Mounted Police) (1995), 95 FTR 181, aff’d 66 ACWS (3d) 476
(CA)). This Court has accepted evidence on information and belief; indeed the
Rule contemplates such event by imposing the sanction that the Court may draw
an adverse inference on the failure to provide evidence of personal knowledge.
There is no basis upon which to draw an adverse inference in this case.
[23]
McGlynn’s
evidence is in the nature of “corporate” evidence in that he acted in a supervisory
capacity and was responsible for his subordinates, including Sterling. He was in a
position to know if the facts were true.
[24]
An
additional affidavit on the points of information and belief would serve no
purpose particularly as full cross-examination has occurred.
[25]
If
there was merit in the Applicant’s complaint, it should have brought a motion
to strike at an earlier date.
[26]
For
all of the above reasons and to the extent required, this Court exercises its
discretion under Rule 55 to permit the acceptance of those parts of McGlynn’s
affidavit that are based on information and belief.
C. Authority to make the Decision
[27]
The
Applicant challenges the authority of the A/Commissioner on two grounds. The
first is that s 23(2) of the FAA specifies that the Minister is to make or deny
a recommendation for remission and this function cannot be delegated. The
second grounds is that there was no delegation in fact.
[28]
The
basis of the Applicant’s first ground is that s 8(2) of the Canada Revenue
Agency Act, SC 1999, c 17 [CRAA] takes away the Minister’s power to
delegate under s 8(1) in the circumstances of the FAA because it is “an Act of
Parliament, other than this Act …”. The relevant provisions are:
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8. (1) The Minister may
authorize the Commissioner or any other person employed or engaged by the
Agency or who occupies a position of responsibility in the Agency, subject to
any terms and conditions that the Minister may specify, to exercise or
perform on the Minister’s behalf any power, duty or function of the Minister
under any Act of Parliament or of a province.
(2)
Subsection (1) does not apply where an Act of Parliament, other than this
Act, or an Act of a province authorizes the Minister to delegate the power,
duty or function to any person or authorizes any person to exercise or
perform it.
(3)
Subsection (1) does not include
(a) a power to make regulations; or
(b) a power, duty or function of the
Minister under this Act, other than those referred to in subsection 6(1) or
section 7.
(4)
The Commissioner may authorize any person employed or engaged by the Agency
or who occupies a position of responsibility in the Agency to exercise or
perform on the Minister’s behalf any power, duty or function that the
Commissioner is authorized to exercise or perform under subsection (1).
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8. (1) Le ministre peut
autoriser le commissaire ou toute autre personne employée ou engagée par
l’Agence ou occupant une fonction de responsabilité au sein de celle-ci,
selon les modalités et dans les limites qu’il fixe, à exercer en son nom les
attributions qu’il exerce sous le régime de toute loi fédérale ou
provinciale.
(2)
Le paragraphe (1) ne s’applique pas dans le cas où la loi fédérale, à
l’exception de la présente loi, ou la loi provinciale autorise soit le
ministre à déléguer les attributions en question, soit une autre personne à
les exercer.
(3)
Sont exclus des attributions visées au paragraphe (1) :
a) le pouvoir de prendre des règlements;
b) les attributions que confie au
ministre la présente loi, à l’exception de celles qui sont prévues au
paragraphe 6(1) et à l’article 7.
(4)
Le commissaire peut autoriser une personne employée ou engagée par l’Agence
ou occupant une fonction de responsabilité au sein de celle-ci à exercer au
nom du ministre les attributions qu’il est lui-même autorisé à exercer au
titre du paragraphe (1).
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[29]
In
my view, s 8(2) does not operate to preclude delegation under s 8(1) unless the
other federal statute or a provincial statute authorizes the Minister to
delegate under that other statute. The intent of the provision is to prevent
conflict or inconsistency between powers delegated under s 8(1) and the
delegation powers under other federal statutes or under provincial statues.
There is no such delegation under the FAA that brings about a conflict or
inconsistency to which s 8(2) of the CRAA would apply.
[30]
In
a modern democracy, delegation of Ministerial powers is expected unless the
words of the statute clearly express or imply that a specific minister of the
Crown must personally decide or act (Comeau’s Sea Foods Ltd v Canada
(Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12 at p 22 (available
on QL)).
[31]
The
Applicant’s reliance on this Court’s decision in Murphy v Canada (Minister of
National Revenue – MNR), 2009 FC 1226, 358 FTR 215, is misplaced. In Murphy,
the instrument of delegation was specifically limited to people at least one
level further up the command chain than the official who made the decision at
issue.
[32]
In
the present circumstances, the Minister’s delegation to the Commissioner was
compliant with s 8(1) and the further delegation from the Commissioner to the
A/Commissioner was in accord with s 8(4).
[33]
The
Applicant objects to the nature of the delegation whereby the Minister retained
the power to make an affirmative recommendation but had delegated the power to
make a negative decision. I see nothing in the delegation power or in the facts
of this case that raise the issue of the non-delegation of an affirmative
power.
[34]
The
Respondent argued that in any event the issue of delegation, not having been
raised in the Notice of Application, cannot be raised in the Memorandum of
Argument.
[35]
The
Notice of Application often arises before an applicant has a full appreciation
of all of the facts. It is therefore not surprising that issues may arise after
an applicant has a more complete disclosure. If the Applicant can be faulted,
it is only on a technical matter of not amending the Notice of Application. The
Respondent was not caught by surprise, unable to address the issue or otherwise
prejudiced in any manner. Therefore, this was an issue which the Court should
deal with on its merits.
D. Reasonableness of Decision
[36]
The
Applicant has cited a number of arguments in support of its position that the
decision is unreasonable. However, in assessing unreasonableness, the Court
must take account of the highly discretionary nature of the scheme for the
remission of tax – an exceptional remedy to which an applicant is not entitled
(see Waycobah First Nation v Canada (Attorney General), 2010 FC 1188,
378 FTR 262 [Waycobah (FC)] at paras 29-30).
[37]
The
Applicant suggests that there is a fundamental unfairness in the government
retaining as taxes monies that it was not entitled to. It can do so because the
Applicant missed limitation periods.
[38]
Limitation
periods cut both ways. There are times where, absent fraud or similar
misconduct, the Crown is precluded from collecting taxes which would otherwise
be payable except for a limitation period. There are other times, such as this,
where the limitation period disadvantages a taxpayer. This state of affairs
does not make the A/Commissioner’s decision arbitrary, unfair or unreasonable.
[39]
While
the Applicant says that the computer error was not “within its control”, there
is no evidence that such was the case other than that statement by the
Applicant’s principal witness. The A/Commissioner’s conclusion was not
unreasonable.
[40]
The
Applicant focuses on the debate concerning whether the A/Commissioner should
have used net revenues rather than gross revenues in considering the impact on
the Applicant of not obtaining the $1 million remission. While others may have
put more emphasis on net revenues, this is an issue upon which reasonable
people may disagree.
[41]
More
importantly, the A/Commissioner looked more broadly at the overall impact of
the proposed remission. It is an error to engage in microscopic examination. It
was entirely reasonable to have regard for the size of the corporation, its
assets, revenues and its inter-corporate structure.
[42]
The
A/Commissioner did not take into account irrelevant matters or proceed
unreasonably or in bad faith. The Applicant’s real argument is as to the weight
that various matters received.
[43]
The
Applicant has argued that the decision lacks consistency with other remission
decisions. The Applicant relied on the Remission Orders issued in respect of
the Jim Pattison Group and VF Imagewear’s cases where there was overpayment.
CRA officials considered nine other cases where internal accounting or computer
errors led to the overpayment of GST/PST.
[44]
There
are a number of problems with the Applicant’s position, not the least of which
is that there is little or no evidence that the two cases were sufficiently
similar to the Applicant’s. The Applicant did not cross-examine on the facts of
these specific cases or on the reasons that the Minister had for granting those
two remission applications.
[45]
Each
remission application turns on its own facts. There is no evidence that the
Minister was being arbitrary in denying the Applicant especially as there had been
nine other cases where remission was denied on at least some grounds similar to
those of the Applicant.
[46]
The
Applicant complains that the CRA erred in not noticing that its GST return
reported $179 million more in gross revenues than did its income tax returns
for a four-year period. However, the Applicant never raised the matter in its
Remission Application. The responsibility for noticing the error and bringing
it forward to the CRA rests with the Applicant.
[47]
Lastly,
and as referred to earlier, the Applicant complains that it is unreasonable,
unjust and “against good conscience” for the CRA to keep the money. I adopt the
reasoning of Justice de Montigny in Waycobah (FC), above, at para 31:
31 I agree with the Respondent that the
concept of "public interest" cannot be viewed merely in terms of the
interests of any one group of taxpayers, but rather must also take into
consideration the concerns of society generally. Through a remission order, the
Applicant is asking for exemption from the application of legislation to which
the rest of Canadian society is subject. The granting of a remission order
necessarily involves a departure, in the particular case of a taxpayer, not
only from the ordinary rules of taxation, but from the principle of equality of
treatment. The phrase "public interest" must therefore be viewed in
the context of the broad regulatory scheme governing the operation of taxation
statutes and with an eye towards the principles animating the Excise Tax Act
as a whole.
[48]
Importantly,
the Minister’s decision must be looked at as a whole. Arguments can be advanced
on a number of points but both individually and cumulatively they do not
establish that the decision falls outside the parameters of reasonableness set
forth in Dunsmuir, above.
V. CONCLUSION
[49]
Therefore,
this application for judicial review will be dismissed with costs.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is dismissed with costs.
“Michael
L. Phelan”
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