Docket: T-1672-12
Citation:
2014 FC 843
Ottawa, Ontario, September 4, 2014
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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MICHAEL BIRD
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Applicant
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and
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CANADA REVENUE AGENCY
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Bird (the applicant) asked the Canada
Revenue Agency (the CRA or the respondent) to cancel the penalty and interest
charged on his 2007 and 2008 tax years, which the Minister can do by virtue of
subsection 220(3.1) of the Income Tax Act, RSC 1985, c 1 (5th Supp) [the
Act]. However, the applicant’s request was refused at both the first and second
level reviews. He now applies to this Court for judicial review of the second
level decision pursuant to subsection 18.1(1) of the Federal Courts Act,
RSC 1985, c F-7.
[2]
In his notice and application, the applicant states
he wants the “cancellation
of penalty and interest charged on 2007, 2008, 2009, 2010 income tax returns.”
In his affidavit, he states he seeks “relief/forgiveness of the balance of my account,
specifically $12,328.39 (as of Feb. 25, 2011).” In his brief, he
maintains his request for “full relief” but alternatively asks the Court to
order the judgment removed and allow him “to pay the outstanding only off future refunds with
no additional negative impact on my credit-worthiness.”
I.
Background
[3]
The applicant is a hotel manager and currently
runs a bed and breakfast out of his home. According to his initial request for
taxpayer relief, his troubles began in 1999, when he lost his job in Whistler, British Columbia and moved to Charlottetown, Prince Edward Island for work. Between 1999
and 2004, he was unemployed for two years. Over the same time period, he was
diagnosed with depression.
[4]
In 2001, he got a job out-of-province and had to
maintain two homes. He incurred debts that he could not pay and he fell behind
on his taxes. He tried to sell his property in order to satisfy his creditors,
but the CRA blocked the sale and refused his proposal to settle his tax debt.
Because of that, the applicant went bankrupt in 2005 from which he was only
discharged on September 14, 2006.
[5]
Financially, the applicant recovered and he
earned a healthy income from 2007 to 2010: $204,188 in 2007, $165,418 in 2008,
$136,190 in 2009 and $179,996 in 2010.
[6]
However, the applicant also incurred expenses.
In late 2007, he bought a house worth $330,000 which he financed by a
$267,303.75 mortgage with a very high interest rate (10.9%). He says in his
affidavit that he was paying $2,800 per month toward that mortgage, but he put $2,670
in his most recent monthly income and expenses statement and the mortgage
agreement itself says that monthly instalments were $2,372.61. From 2007 to
2010, he was also paying $1,300 per month for a collateral mortgage on the same
house.
[7]
Unfortunately, the applicant lost his job in
2009 and was unable to find other employment. Most of his income in 2010 was
from cashing in his registered retirement income fund, which is now depleted.
As well, he did not pay all the taxes that he owed, leaving balances every
year: $19,110.49 in 2007, $12,220.19 in 2008, $723.23 in 2009 and $8,011.99 in
2010. Interest has been accruing on some of those sums since April 30, 2008 and
he has also been assessed some penalties for filing his 2007, 2008 and 2010
income tax returns late. By May 16, 2012, he owed the CRA just over $69,000 in
back taxes, penalties and interest and the only payment he had made against it
in the previous four years was $426.91.
[8]
On November 19, 2009, the applicant wrote to the
CRA asking it to cancel the penalty and interest on his 2007 and 2008 tax
years, citing his inability to pay and referring to many of the above described
circumstances. He also claims that he received verbal assurances from CRA
officials later that relief for 2009 and 2010 would also be considered without
any formal request.
[9]
Meanwhile, he was receiving employment insurance
and eventually decided to employ himself. He converted his home into a bed and
breakfast, reactivated his hospitality management consultancy and started a
destination management company with his wife. He eventually sold the house to
his daughter and father-in-law and he claims that he has been able to pay the
CRA $55,000 since November 2012.
II.
The First Level Review Decision
[10]
The matter first went to a taxpayer relief
officer who prepared a fact sheet dated March 17, 2011. She summarized the
applicant’s submissions, then said the applicant has repeatedly filed personal
income tax returns late and has not acted quickly to remedy any delays or
omissions.
[11]
She also noted that the applicant’s net worth
was approximately $129,000 once she excluded his tax debt from his assets and
she recommended that the request be denied. A handwritten notation from another
reviewer indicated agreement and also said the applicant had withdrawn nearly
$200,000 from his RRIFs and RRSPs in 2010 but did not put any of that money
toward his tax debt.
[12]
The matter was then forwarded to the Minister’s
delegate, assistant director of the Charlottetown Tax Services Office. He
agreed with the officer’s recommendation and denied the applicant’s request by
a generic letter dated March 30, 2011. The assistant director briefly described
the factors which are relevant to taxpayer relief decisions and then asserted
that a careful review of the facts in this case failed to show that payment of
the entire liability would cause undue hardship.
III.
The Second Level Review Decision
[13]
The applicant then applied for a second level
review, claiming that the assistant director ignored the facts he had presented.
[14]
As with the first level review, the record
disclosed a taxpayer relief fact sheet; this one prepared by another taxpayer
relief officer. The fact sheet notes that since 2000, the applicant has only
filed his tax returns on time in 2001, 2005 and 2009 and has given no
explanation as to why. It also refers to his fairly high income from 2007 to
2010 and notes that the applicant has not paid his large tax debt or the
interest that has been accruing since 2008.
[15]
The officer then reviewed the applicant’s
current financial situation. The applicant had given to the CRA assets and
liabilities information showing that his home was worth $330,000 and his cars
were worth $4,000. Those assets are offset, however, by a $275,000 mortgage, a
$6,000 credit card debt, a $1,500 overdraft on his bank account and a $50,000
debt to the CRA. Since the CRA debt had increased to $69,034 by the time the
fact sheet was prepared, the officer calculated the applicant’s net worth to be
approximately $17,500. The officer also said that a search of Google Maps
showed that the applicant owned a cottage, but that did not appear to affect
his calculations.
[16]
Further, the officer noted that the applicant
had cashed in his $130,000 RRIF. After taxes on the withdrawal, he had $91,000
remaining, which he spent as follows: $29,000 paying back a loan from the Able
Group, $44,700 towards an expenses shortfall and $17,300 toward other loans and
legal payments. He used none of it to pay his back taxes.
[17]
Finally, the officer reviewed the applicant’s
income and expenses statement. It showed a monthly shortfall of $18, but
business expenses were not separated from personal expenses, nor did the
applicant say how much of the home was reserved for personal use. The officer
looked at the 2010 tax return for the bed and breakfast and saw that a number
of expenses were duplicated, including insurance, property taxes, telephone and
utilities, fuel costs, motor vehicle expenses, and interest. Even subtracting
just the property taxes from the monthly expenses would give the applicant a
surplus of $246.
[18]
All that considered, the officer recommended
that the request be denied. In his view, the applicant had sufficient resources
to pay off his tax debt and simply had not, prioritizing other debts and living
above his means. His surplus in 2010 alone would have been sufficient to cover
the entire tax debt. Further, from 2009 to 2010, he had contributed $46,299 to
RRSPs without ever addressing his tax debt.
[19]
A reviewer agreed with the recommendation and
forwarded the matter to another Minister’s delegate, manager of the Taxpayer
Relief Appeals Division in the Summerside Tax Centre. The manager also approved
the recommendation and he rejected the applicant’s request by a letter dated
July 31, 2012.
[20]
This letter gave many of the same reasons that
the officer had suggested. The manager began by identifying that the applicant
was seeking relief for the 2007 and 2008 tax years due to financial hardship
and inability to pay. The manager also summarized the applicant’s submissions,
but dismissed them because the events all occurred before the time period for
which the applicant was requesting relief; they did not explain why the
applicant could not file his tax returns on time or make the required payments.
[21]
As well, the manager spoke generally about the
taxpayer relief provisions and noted that four factors should ordinarily be
considered: whether the individual has a history of voluntary compliance with
tax obligations, whether the individual has knowingly allowed a balance to
exist, whether the individual exercised a reasonable amount of care in
conducting his or her affairs and whether the individual has acted quickly to
remedy any delays or omissions. The manager concluded that all four factors
were negative for the applicant.
[22]
The manager also said that the CRA views
financial hardship as the prolonged inability to provide basic necessities such
as food or shelter. It is usually determined by factors such as household
income, basic living expenses and the capacity to borrow. Here, he said that he
could not discern the applicant’s financial situation because there was no true
separation between his business and personal expenses.
[23]
Further, he said that the applicant earned
sufficient income in 2007 and 2008 to pay the taxes when they were due. The
manager stressed that during the 2009 and 2010 years, the applicant made large
contributions to his RRSPs and withdrew $130,000 from his RRIF without ever
addressing his tax debt.
[24]
The manager concluded that relief was not
warranted and informed the applicant that interest would continue to accrue
until he paid his debt.
IV.
Application for Judicial Review
[25]
The applicant then applied for judicial review
of the second level decision and in so doing, asked for all correspondence
between himself and the CRA from 2005 until 2012. The respondent objected to
the extent of disclosure and produced in the tribunal record only those documents
considered by the decision maker. The applicant challenged that refusal, but
Prothonotary Morneau agreed with the respondent and refused to order any
further disclosure.
[26]
However, the applicant was able to find copies
of some of that missing correspondence and has included those copies in his
record. Generally speaking, they relate to six matters: an instance where the
CRA garnished his salary by more than 100%, his diagnosis of depression and
anxiety, the sale of his house to his daughter and father-in-law, his
bankruptcy, some cheques that he claims were sent to the CRA and never cashed
and his and his wife’s business.
V.
Issues
[27]
There are five issues in this application:
A.
Are the additional documents submitted by the
applicant admissible?
B.
What is the standard of review?
C.
Was the process unfair?
D.
Was the decision unreasonable?
E.
What remedy is appropriate, if any?
VI.
Applicant’s Written Submissions
[28]
The applicant says the manager’s affidavit was
reasonably accurate and so he largely focuses on the documents he states were
missing from the tribunal’s record but included in his own. In his view, those
documents are relevant since they relate to matters referred to in his initial
request.
[29]
The applicant does not take a position on the
standard of review.
[30]
The applicant argues that he is a good citizen
who has hit a rough patch in his life, but the CRA has been unreasonably
dismissive and inflexible. In his view, the record shows that his financial and
personal difficulties, including his depression, have made it impossible for
him to comply with the requirements of the Act. He has had to deplete his
entire life savings over the past few years and he says that obviously shows
hardship.
[31]
Further, he says that his current income is at
poverty level but that he has still paid the CRA $55,000 since 2012. As well,
his business is showing promise and the only thing keeping him from returning
to good credit is his debt to the CRA for interest and penalties. The applicant
concludes his memorandum by asking the Court to cancel the interest and penalty
on his 2007 to 2010 taxation years or alternatively, to remove the judgment
against him.
[32]
As well, the applicant makes other complaints
when reciting his version of the facts in his affidavit. In particular, he
views the fact sheet prepared by the officer as incomplete and misleading and
he complains that the manager’s decision completely ignores the “human
element”. Although affidavits are not the appropriate place for arguments, I
will consider those complaints as well.
VII.
Respondent’s Written Submissions
[33]
The respondent notes that none of the documents
attached to the applicant’s affidavit were before the decision maker but really
only challenges the admissibility of the documents appended at pages 99 to 117.
It says that these are not attached as exhibits to an affidavit and are
therefore inadmissible.
[34]
As for the substance of the decision, the
respondent says that the standard of review is reasonableness and that the
decision was reasonable. The manager properly dismissed the evidence of events
leading to the bankruptcy since they could not explain his failure to comply
with the Act in 2007 and 2008. Further, the applicant had a history of
non-compliance, had provided inconsistent financial information from which his
financial situation could not be discerned, had failed to pay his taxes when
they were due despite having the means to do so and prioritized other debts
over his tax debts. The respondent says the record amply supports those facts
which justify the decision to deny the applicant’s request.
[35]
In the event that it is wrong, the respondent
argues that the requested remedies are inappropriate. In its view, the only
thing the Court can do is send the matter back for redetermination, since only
the Minister can cancel the penalty and interest. Further, the respondent says
that the alternative remedy requested is outside the purview of judicial
review.
VIII. Analysis and Decision
A.
Issue 1- Are the additional documents submitted
by the applicant admissible?
[36]
The applicant’s affidavit suffers from a few
formal defects. Contrary to subsection 80(1) of the Federal Courts Rules,
SOR/98-106 [the Rules], it is not in Form 80A and contrary to subsection 80(3),
none of the exhibits are endorsed by the person before whom the affidavit was
sworn. Indeed, none of the exhibits were expressly identified in the affidavit
and most were not even referred to generally. They are essentially just loose
documents whose inclusion in the record is not contemplated by Rule 309(2).
[37]
However, the respondent has only objected to a
few of those documents; the ones contained at pages 99 to 117 of the
applicant’s record. Plainly, the respondent is right that these exhibits were
not filed in compliance with the Rules. Further, these Rules are not simply
technicalities. As it is, the applicant has not advised what these documents
are or whether they are authentic, nor has he committed himself to the truth of
those representations by oath or affirmation. Their value as evidence is
dubious.
[38]
That said, section 55 of the Rules allows the
Court to “vary a rule or
dispense with compliance with a rule” in special circumstances.
Here, the applicant is a self-represented litigant. While that is not as
special a circumstance as it ought to be, he has tried in other ways to comply
with the processes of this Court, but the Rules can be complicated. Some
procedural irregularities can be expected and, in my view, forgiven where they
are honest mistakes that do not prejudice another party. I draw some support
for this view from Wheeldon v Canada (Attorney General), 2012 FC 355 at
paragraphs 17 to 19, [2012] FCJ No 403, where a self-represented litigant’s
non-compliance with Rule 317 was excused since the mistake was caused by lack
of knowledge and the documents were necessary to consider the merits of the
judicial review.
[39]
Here, the nature of most of the challenged
documents are fairly self-evident, they are mostly correspondence between the
Birds and other parties, including the CRA. Some are date stamped by the CRA.
Most would have been identifiable by the applicant and they do not appear to be
forgeries. I am satisfied that his failure to identify and authenticate them
was an honest oversight.
[40]
As well, it is not prejudicial to the respondent
to admit these documents. They were included within the applicant’s record
which was filed on September 10, 2013. The respondent had plenty of time to
respond before it filed its own record on October 7, 2013.
[41]
Further, although it is not this Court’s role on
judicial review to assess evidence that was not before the decision maker, it
is potentially erroneous for the CRA to ignore relevant evidence to which it
had access. For that reason, evidence that could show that the CRA possessed
pertinent information that it did not consider potentially has probative value.
[42]
In my view, these are special circumstances and
it is in the interests of justice to treat the documents as if they were
properly submitted exhibits.
B.
Issue 2 – What is the standard of review?
[43]
Where previous jurisprudence has determined the
standard of review applicable to a particular issue before the court, the
reviewing court may adopt that standard (see Dunsmuir v New Brunswick,
2008 SCC 9 at paragraph 57, [2008] 1 S.C.R. 190 [Dunsmuir]).
[44]
Although the applicant does not frame it this
way, aspects of his argument about the missing documents raise a procedural
fairness issue. Such issues are reviewable on a correctness standard (see Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 43,
[2009] 1 S.C.R. 339 [Khosa]). Decision makers must accord to affected
persons the procedural rights to which they are entitled, though sometimes an
error will not attract relief if it “is purely technical and occasions no substantial
wrong or miscarriage of justice” (see Khosa at paragraph
43).
[45]
As for the substantive review, our Court of
Appeal has held that the standard of review for a decision under subsection
220(3.1) of the Act is reasonableness (see Telfer v Canada (Revenue Agency),
2009 FCA 23 at paragraph 24, 386 NR 212). That means that this Court will not
intervene if the decision is transparent, justifiable, intelligible and within
the range of acceptable outcomes based on the evidence before the decision maker
(see Dunsmuir at paragraph 47 and Khosa at paragraph 59). As the
Supreme Court held in Khosa at paragraphs 59 and 61, a reviewing court
cannot substitute its own view of a preferable outcome, nor can it reweigh the
evidence.
[46]
The reason for this limited scope of review is
because Parliament assigned the discretion to make these decisions to the
Minister, not to this Court. That legislative choice commands deference, so the
Court cannot usurp the Minister’s role. Rather, my only function is to
determine whether the Minister’s delegate exercised his discretion lawfully,
which he did if he followed a fair process and made a reasonable decision.
Therefore, when it comes to the substance of the decision, I can only set it
aside if the reasons, read in the context of the record, do not reveal why the
manager decided as he did or allow me to determine whether his conclusions are
defensible in view of the facts and applicable law (see Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62 at paragraphs 15 and 16, [2011] 3 S.C.R. 708; Dunsmuir at paragraph
47).
C.
Issue 3 – Was the process unfair?
[47]
Parts of the applicant’s arguments are directed
at whether the respondent was right not to include some correspondence from his
file in the record. That issue has been dealt with by the Prothonotary and is
not before me. However, implicit in the applicant’s submissions and affidavit
is a complaint that it was unfair for the manager not to consider that
correspondence. The problems relating to the bankruptcy and his rejected
proposal were raised in his initial complaint, after all, and the CRA could
have verified that information from its own file. Instead, the CRA ignored it.
[48]
In some circumstances, I can see how it might be
unfair for a decision maker to reject an applicant’s version of events due to
lack of evidence when it could have verified the submissions from its own
files.
[49]
However, that is not what happened here. The
manager did not reject the applicant’s version of events. He never denied that
the applicant was depressed in 2004 or that he was working in another province
or that he went bankrupt in 2005. Indeed, he did not even deny that the CRA
caused the bankruptcy through its aggressive refusal to compromise. Rather, the
manager simply found that those facts, occurring as they did from 1999 to 2006,
did not explain why the applicant could not file his 2007 or 2008 income tax
returns on time, nor why he could not pay the interest on his taxes in view of
his substantial income. I will discuss whether that was reasonable shortly, but
it is not unfair to believe an applicant’s statements without verifying them.
D.
Issue 4 – Was the decision unreasonable?
[50]
Because the CRA made no procedural error, the
exhibits filed by the applicant are, in the end, irrelevant. Most tend to prove
facts that were already accepted by the decision maker (such as the high
interest mortgage) and none were presented to the decision maker as evidence.
Indeed, some of the events, such as the sale of his house and the $55,000
payment to the CRA happened after the manager made his decision on July 31,
2012. Decision makers are not required to predict the future.
[51]
Similarly, a decision maker cannot be faulted
for failing to consider evidence that the applicant did not presented. The
applicant submits in his affidavit that the CRA has treated him as if he was “guilty until proven
innocent,” but people are expected to pay their taxes on time and
in the ordinary course are penalized if they do not. Relief under subsection
220(3.1) is discretionary and the Minister did not have to prove anything.
Rather, the applicant was trying to convince the Minister to make an exception
for him and that means he is the one responsible for providing the evidence.
[52]
As such, I cannot accord any weight to such
matters as the applicant’s statements that he lived in his garage and rented
the house out for the winter of 2011 or that he only made about $29,000 for
that year. The manager’s decision can only be evaluated on the basis of the
evidence that he had before him and those allegations were not made at the time.
[53]
Moving to the substance of the decision then,
the applicant does not challenge many of the facts upon which the decision
maker relied. He does not deny that he has repeatedly filed his tax returns
late, nor that he has knowingly allowed a balance to exist, nor that he has
been slow to remedy delays and omissions.
[54]
Rather, the applicant primarily complains about
four aspects of the decision: the manager’s dismissal of the evidence about the
applicant’s depression and the circumstances leading to his bankruptcy; the
manager’s failure to consider that the applicant was paying current income tax
faithfully; the manager’s conclusions about his co-mingling of expenses; and
the CRA’s failure to consider the “human element.” I will consider these in
turn. Also, as the manager approved the recommendations in the fact sheet, it
is appropriate to refer to it to flush out some of the manager’s conclusions
when assessing whether his decision was reasonable.
[55]
The applicant states in his initial letter that
he was diagnosed with depression in 2004 and had been receiving treatment since
then (he has since provided a doctor’s note saying that he was actually
diagnosed in 2000). However, the applicant did not explain to the manager what
continuing effect this disease has had on his life or on the decisions that
caused his current financial crisis. Therefore, there was no evidence to
suggest it was related to his failure to file his returns or pay his taxes on
time and it was reasonable for the manager to dismiss that factor.
[56]
With respect to the circumstances surrounding
his bankruptcy, the applicant says in his affidavit that they are relevant
since his bankruptcy is the reason that he has poor credit and had to pay such
an obscene amount of interest on his home. Therefore, it is related to his
inability to pay his taxes.
[57]
The applicant says that the home purchase was
his best option after having lost his first house and cottage in the bankruptcy
and then moving twice more when houses he had been renting were sold.
[58]
In any event, it is worth emphasizing that the
manager decided that, even with that mortgage, the applicant had enough money
to pay his taxes when they were owed. That was the substance of the decision
and it therefore does not matter why the mortgage payments were so high, since
the manager accepted that they were legitimate expenses. Given that, the
failure to consider the circumstances surrounding the bankruptcy was reasonable
even in light of the explanations the applicant now provides.
[59]
Moving to the next complaint, the applicant says
in his affidavit that the officer’s calculations at page 4 of the second level
review fact sheet are based on gross income and ignore the fact that he was
only receiving about half that after taxes.
[60]
There are two sets of calculations on that page
and it is unclear to which he is referring, but in either case, the allegation
is unfounded. The first set of calculations is based on a monthly income and
expense statement filled out by the applicant. It is undated, but the applicant
confirmed by a phone call with the officer that it was current as of May 17,
2012. That form asks for net income, not gross, and the fact sheet accurately
records the applicant’s responses. If the applicant put his gross income on
that form, then that would have caused an error in the officer’s calculations,
but it was reasonable for the officer to assume that the statement was filled
out correctly.
[61]
In the second set of calculations, the officer
measured the applicant’s declared expenses in 2010 against his income and found
that he would have had a $59,595 surplus over the course of the year. In doing
that, the officer specifically subtracted from the applicant’s income the $47,884
of tax that was withheld at source, so he plainly was not just considering
gross income. The officer evaluated it against the total amount of tax owing in
January 2011.
[62]
Therefore, in both sets of calculations, the
officer used net income, not gross, and the applicant’s submissions are
unfounded. To the extent that the applicant implies that he should not have to
pay his back taxes because he was paying his current taxes faithfully, present
compliance does not excuse past non-compliance and it was reasonable for the
decision maker not to attach any significance to that. Rather, the manager had
to evaluate the applicant’s ability to pay and he reasonably concluded that the
applicant could have paid his back-taxes at the time he made his request, even
on top of the taxes he was paying on his 2010 income.
[63]
Next, the applicant says that his taxes are
prepared by a certified general accountant and that he has not co-mingled his
personal and business expenses. On this issue, the record is defective, since
the officer said he considered the 2010 tax return for the bed and breakfast in
the fact sheet and I assume that the manager did the same, but that return is
not in the record. As a result, I cannot determine whether it was reasonable
for the Minister’s delegate to draw that conclusion.
[64]
However, even assuming that aspect of the
decision was unreasonable, I cannot say the decision as a whole was
unreasonable. The officer said in his fact sheet that the applicant contributed
$46,299 to his RRSPs in 2010, though he had earlier put the number at $27,299
and that is the number the manager says he relied on in his affidavit. In
either case, it was a substantial amount and the applicant admits that he did
that. He now says he did it to reduce taxes owed and then diverted the funds, but
whatever the merit of that strategy, he provided the CRA with no explanation as
to why at the time. He also does not deny that he cashed in his RRIFs and
directed all the after tax income toward other matters. It was reasonable for
the Minister’s delegate to derive from those facts that the applicant had the
ability to pay and simply failed to exercise a reasonable amount of care in
conducting his affairs under the self-assessment tax regime.
[65]
Finally, the applicant submits in his affidavit
that the CRA has misunderstood or disregarded the “human element.” He is a real
person who is trying his best to negotiate a balance between his
responsibilities to his family and to the state. When describing his choice
between accruing more debt or selling his house, he says the following:
In human day to day living terms, my decision
became easier: Pay CRA, lose our home, file for bankruptcy again, abandon my
family, fail them again. CRA continued to take 40% of my income so they were
getting paid. I will use my life savings to pay, in order of priority, food,
shelter, basic medical, transportation etc. for my family and try to secure
employment.
[66]
His concerns are understandable, but the
decision maker found as a fact that he was prioritizing more than basic necessities
such as food and shelter. To reiterate, he was also prioritizing paying back
loans to the Able Group and contributing to his RRSPs and that finding of fact
is supported by the evidence.
[67]
In these circumstances, I understand why the
Minister’s delegate did not cancel the interest and penalties on the
applicant’s account and that outcome is defensible even if the manager was
wrong about the co-mingling of business and personal expenses. The decision was
reasonable.
[68]
Finally, before leaving this issue, the
applicant also states in his affidavit that the officer was wrong about him
owning a cottage. I agree that the officer’s search of Google Maps was not a
reasonable basis to conclude the opposite. However, neither the officer nor the
manager attached any significance to the cottage, so it does not affect the
reasonableness of the decision.
[69]
Similarly, it does not matter that the manager
failed to consider granting relief for 2009 and 2010 as well. The manager says
in his affidavit there was no request to do so in the file, but in any case, it
is clear from his reasons that he would not have granted relief for 2009 or
2010 either. As such, even if that mistake was made, it does not disturb my
conclusion on reasonableness.
[70]
It appears from the applicant’s affidavit that
the situation has changed substantially since the manager made his decision. It
may very well be that an application made now, supported by the evidence the
applicant has provided, would have a different result. However, this is not
something I am allowed to assess on this judicial review. Rather, my only task
is to determine whether the second level decision was procedurally fair and
reasonable at the time it was made and I am satisfied that it was. I therefore
dismiss this application for judicial review.
[71]
Because of my conclusions, I need not deal with
Issue 5.
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