Kravetsky v. The Queen, docket 98-2262-IT-G

Date: 19981223

Docket: 98-2262-IT-G; 98-2264-IT-G

BETWEEN:

NEIL H. KRAVETSKY, FRED R. KLEIN,

Appellants,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for order

Bowie J.T.C.C.

[1] Counsel for the Respondent in these two appeals moves, pursuant to Rule 53, for an Order striking out paragraphs 12 and 13 of the Notices of Appeal, on the grounds that they may prejudice or delay the fair hearing of the appeals. The appeals of these two Appellants are begun by identical Notices of Appeal, the last three paragraphs of which read as follows:

12. I am also advised that the Minister has made a settlement with all of the investors in Organic Research. This settlement was not made available to me.

13. The Minister's decision to exclude me from the settlement is discriminatory and unfair.

14. The Relief sought is:

a) the assessment should be vacated as the Minister has failed to act with due dispatch;

b) the investment tax credit should be allowed;

c) the business loss should be allowed;

d) the Minister's decision to exclude me from settlement be reviewed.

[2] Counsel for the Appellant, quite rightly, conceded in argument that the correctness of the assessments appealed from must be determined by the Court on the basis of the facts of the Appellants' own cases, and the law as it applies to them. There are at least three judgments of the Federal Court of Appeal to that effect.[1] The principle was expressed this way by Strayer J.A. in Hawkes:[2]

This Court had occasion recently to review the law in respect of inconsistent assessments concerning the same taxpayer and as between different taxpayers. In Ludmer et al. v. H.M. this Court considered earlier jurisprudence and confirmed the basic principle that it is the duty of the Minister to assess, and if necessary reassess, taxpayers' returns so as to apply correctly the law to the facts. If the taxpayer disagrees with any particular assessment he or she has the right to appeal to the Tax Court of Canada where the law and the facts can be fully reviewed and a further appeal may be brought to this Court. Thus the fact that the Minister has assessed one return of a taxpayer in a different way from another return, or has assessed two taxpayers involved in similar activities differently, is not proof that any particular assessment is incorrect. That is a matter for determination on appeal.

[3] In the course of argument, counsel indicated to me that the two paragraphs moved against are relied upon only in respect of the relief claimed by paragraph 15(d) of the Notices of Appeal. His position was that an arbitrary and unfair exercise of a discretionary power conferred by statute is subject to judicial review in this Court. He was, however, unable to point to any statutory provision giving this Court such jurisdiction. Indeed, the only authority to which he could refer me was subsection 18(1) of the Federal Court Act. That provision, of course, confers jurisdiction only on the Federal Court of Canada. If the Appellants wish to pursue the remedy claimed in paragraph 14(d) on the basis of the facts that they allege in paragraphs 12 and 13, then they will have to do so in that Court. This Court has only the jurisdiction that is conferred on it by Parliament, either expressly or by necessary implication: see Lamash Estate v. M.N.R.[3]

[4] Paragraphs 12 and 13 and subparagraph 14(d) of the Notices of Appeal are struck out. The Respondent shall have until February 3, 1999 to deliver Replies to the Notices of Appeal. The Respondent is entitled to costs of one motion in any event of the cause.

Signed at Ottawa, Canada, this 23rd day of December, 1998.

J.T.C.C.