Date: 20080213
Docket: T-2124-06
Citation: 2008 FC 180
Ottawa, Ontario, February 13, 2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
EBAY CANADA LIMITED and
EBAY CS VANCOUVER INC.
Applicants
and
MINISTER
OF NATIONAL REVENUE
Respondent
FURTHER REASONS AND FINAL JUDGMENT
[1]
These
Reasons are further to the Reasons delivered in this proceeding on September
18, 2007 (indexed as 2007 FC 930) and the Judgment given herein is a final
Judgment.
[2]
At
the oral hearing of this matter, Counsel for the Applicants raised a matter not
addressed in the Applicants’ written Memorandum. Counsel for the Respondent
agreed that the matter could be raised and that the Court should address the
matter subject to the delivery of the Reasons and Partial Judgment aforesaid.
This is referred to in paragraph 15 of my earlier reasons in which I said:
The Applicants raised in oral
argument but not in their written memorandum, an argument as to the sufficiency
of the evidence on the record directed to whether the Minister was conducting a
genuine and serious inquiry into the group identified namely PowerSellers. The
Applicants rely on a decision of Gauthier J. of this Court in Canada (MNR) v. Chambre immobilière
du Grand Montréal, 2006 FC 1069. I am advised by Counsel that this decision is
under appeal and is scheduled to be argued in the next two months. Counsel for
both sets of parties agree that I should issue my decision in the present case
while holding any further argument on this point in reserve for argument and
determination later. Given the agreement of Counsel on this point, I will give
partial judgment based on the issues argued before me, reserving on the issue
as to the sufficiency of evidence as to a genuine and serious inquiry, but not
reserving forever. I will reserve until the later of sixty (60) days following
final determination whether judicially or otherwise, of the matter in the
Federal Court of Appeal or ninety (90) days from the date of the issuing of
these Reasons whichever is earlier. At or before that time the Applicants will
be required to make an application for a fixing of the time and place for the
hearing of argument on this issue or to advise that the this reserved issue has
been abandoned or settled.
I will also reserve as to
costs until Judgment has been given on all issues or the remaining issue has
been abandoned or settled.
[3]
The
Federal Court of Appeal has now given its decision on November 2, 2007 indexed
as Canada (MNR) v. Chambre Immobilière du Grand Montreal, 2007 FCA 346.
The Court reversed the decision of Justice Gauthier of this Court in a
unanimous decision delivered by Trudel J.A. The parties have filed further
written Arguments in the present proceeding, no oral hearing is required.
[4]
In
the present proceeding, the Applicants argue that the decision of the Federal
Court of Appeal incorrectly interpreted the provisions of subsection 231.2(1)
of the Income Tax Act, R.S.C. 1985 (5th supp.) c.1 and that
there still remains under those provisions a requirement that the Minister must
demonstrate that there exists “a genuine and serous inquiry”.
[5]
The
Federal Court of Appeal in the Chambre Immobilière case, supra,
reviewed the jurisprudence and expressly found as summarized in paragraph 21
that whether a “genuine and serious” inquiry exists is not the appropriate
test. Trudel J.A. said:
21 Je
suis d'avis que " l'enquête sérieuse et véritable " n'est pas le
critère approprié pour l'examen d'une demande sous le paragraphe 231.2(3) de la
Loi. La question à se poser n'est pas celle de savoir si le MRN a entrepris une
enquête sérieuse et véritable, et encore moins sur chacune des personnes non
désignées nommément du groupe. La question est plutôt la suivante : le juge des
requêtes est-il convaincu que les renseignements ou documents concernant une ou
plus d'une personne non désignées nommément (formant un groupe identifiable),
sont exigés pour vérifier le respect de la Loi?
[6]
I
am bound by that finding and do not propose to review the jurisprudence that
the Federal Court of Appeal already considered in arriving at that conclusion.
[7]
I
am satisfied that there is sufficient evidence particularly the affidavit of
Aziz Fazal to satisfy me that the information respecting the “PowerSellers” was
required by the Minister to verify compliance by those persons with the Income
Tax Act. Further, even if the test were that of a “genuine and serious
inquiry”, I am satisfied that the affidavit of Fazal provides sufficient
evidence to meet that test.
[8]
Accordingly,
I affirm the order which I gave ex parte on November 6, 2006 with the
amendments as made in paragraph 1 of my Partial Judgment of September 18, 2007.
[9]
As
to costs, the Minister has asked that they be payable to the Respondent and
suggested an amount of $25,000.00 citing “unnecessary delay” which the Respondent
says the Applicant caused between the date of the partial judgment and the date
of this judgment. I find no such delay. The Respondent agreed that the
Applicants could raise this further argument even though it was not in their
written argument. The parties agreed to a timetable for the provision of
further written argument and they adhered to that timetable. Accordingly, I
award costs to the Minister to be taxed in accordance with the middle of Column
IV; two days of hearing shall be allowed.
FINAL JUDGMENT
For the Reasons provided
here in together with those furnished on September 18, 2008:
1. The
Order of this Court dated November 6, 2006 in Court file No. T-1868-06 is
affirmed except that the following words:
“…having
a Canadian address according to your records…”
are
varied to read:
“…registered
as having a Canadian address…”
2. The
Respondent is entitled to its costs to be taxed at the middle of Column IV; two
days of hearing shall be allowed.
"Roger T. Hughes"
Email this Content