Date: 20011122
Docket: A-682-00
Neutral citation: 2001 FCA 361
CORAM: STONE J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
OLYMPIA INTERIORS LTD.
and
MARY DAVID
Appellants
-and-
HER MAJESTY THE QUEEN
THE ATTORNEY GENERAL OF CANADA
Respondents
Heard at Toronto, Ontario, on November 22, 2001
Judgment delivered at Toronto, Ontario, on November 22, 2001.
REASONS FOR JUDGMENT OF THE COURT: MALONE J.A.
Date: 20011122
Docket: A-682-00
Neutral citation: 2001 FCA 361
CORAM: STONE J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
OLYMPIA INTERIORS LTD.
and
MARY DAVID
Appellants
-and-
HER MAJESTY THE QUEEN
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto,
Ontario on November 22, 2001)
MALONE J.A.
[1] This is an appeal from an order of Blais J. dated October 27, 2000 dismissing the appellants' application which sought a declaration that certificates bearing Court File No. GST-41-92 and ITA-8447-92 ("the Contested Certificates"), which had been filed in the Federal Court of Canada by the Minister of National Revenue, were without force and effect. These Contested Certificates required the appellants to pay sums of money assessed under both the Excise Tax Act and the Income Tax Act.
[2] By motion before Associate Chief Justice Jerome, the appellants had sought, inter alia, a declaration that the Contested Certificates were void. Jerome A.C.J. did not deal directly with that portion of the appellants' motion. Instead, he dismissed their motion on the grounds that he was not prepared to strike paragraph 56 of the Crown's statement of defence on the basis of res judicata. In that paragraph a set-off was claimed by the Crown for federal sales tax, interest and penalties owing under the Excise Tax Act. The appellants had contended that, even though previous criminal proceedings had been stayed, the plea of res judicata was open to them and the Crown's statement of defence should be struck. This order was appealed to this Court on March 27, 1996, but the appellants discontinued their appeal on June 25 of that same year.
[3] On May 1, 1998, MacKay J. referred to the validity of the Contested Certificates when he refused the appellants' motion to join various actions then before the Trial Division of the Federal Court (reported at [1998] F.C.J. No. 576). He wrote as follows: ...[A]ssessments of tax under the Excise Tax Act, or of payments due on behalf of employees under the Income Tax Act, if not questioned by the party assessed and thereafter revised by the Minister, and here those steps did not occur, are ultimately recoverable by the Crown by filing of a certificate in this Court which certificate is then enforceable as a judgment of the Court. Here the assessments were not contested within the 90 day limitation periods applicable under the respective statutes, a period that terminated long before the certificates were filed. Moreover, the validity of those certificates does not appear to have been contested for more than two years after the certificates were filed. In the case of the certificate in Court file GST-41-92 filed in November 1992 and amended in December 1992, the first step by Mrs. David to contest the certificates appears from the file to have been initiated in August 1995. In the case of the certificate in Court file ITA-8447-92 filed in November 1992, the first step initiated by the plaintiffs, an application for an order for particulars, was made in August 1995. As I have noted, long before those first steps were initiated, indeed before the certificates were filed, the 90-day limitation period, fixed by statute, for questioning the assessments underlying the certificates, had expired.
[4] MacKay J. based the foregoing analysis on subsections 301(1.1) of the Excise Tax Act and 165(1) of the Income Tax Act which read as follows:
| 301(1.1) Any person who has been assessed and who objects to the assessment may, within ninety days after
the day notice of the assessment is sent to the person, file with the Minister a notice of objection in the prescribed form and manner setting out the reasons for the objection and all relevant facts.
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301(1.1) La personne qui fait opposition à la cotisation établie à son égard peut, dans les 90 jours suivant le jour où l'avis de cotisation lui est envoyé, présenter au ministre un avis d'opposition, en la forme et selon les modalités déterminées par celui-ci, exposant les motifs de son opposition et tous les faits pertinents.
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| 165. (1) A taxpayer who objects to an assessment under this Part may serve on the Minister a notice of objection, in writing, setting out the reasons for the
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objection and all relevant facts,
(a) where the assessment is in respect of the taxpayer for a taxation year and the taxpayer is an individual (other than a trust) or a testamentary trust, on or before the later of
(i) the day that is one year after the taxpayer's filing-due date for the year, and
(ii) the day that is 90 days after the day of mailing of the notice of assessment; and
(b) in any other case, on or before the day that is 90 days after the day of mailing of the notice of assessment.
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165. (1) Le contribuable qui s'oppose à une cotisation prévue par la présente partie peut signifier au ministre, par écrit, un avis d'opposition exposant les motifs de son opposition et tous les faits pertinents, dans les délais suivants:
a) lorsqu'il s'agit d'une cotisation relative à un contribuable qui est un particulier (sauf une fiducie) ou une fiducie testamentaire, pour une année
d'imposition, au plus tard le dernier en date des jours suivants:
(i) le jour qui tombe un an après la date d'échéance de production qui est applicable au contribuable pour l'année,
(ii) le 90e jour suivant la date de mise à la poste de l'avis de cotisation;
b) dans les autres cas, au plus tard le 90e jour suivant la date de mise à la poste de l'avis de cotisation.
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[5] On August 23, 2000 the appellants, with leave of a Federal Court trial judge, again brought an application under Rule 369 seeking a declaration that the Contested Certificates were without force and effect. The written material filed by the appellants alleged, among other things, that the Contested Certificates violated rights guaranteed under s. 12 of the Charter. The appellants' application was dismissed by Blais J. as being res judicata; the same relief having been sought, and not granted, in the matter disposed of by Associate Chief Justice Jerome in 1996. The appellants in this appeal now seek to overturn Blais J.'s decision.
[6] We need not deal with the res judicata issue as we agree with MacKay J. that the issue of the validity of the Contested Certificates is separately time-barred by statute, namely by subsections 165(1) of the Income Tax Act and 301(1.1) of the Excise Tax Act. There is no material on the record that demonstrates that the appellants ever filed a notice of objection to the assessment upon which the Contested Certificates are based.
[7] The appeal will be dismissed with costs.
"B. Malone"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-682-00
STYLE OF CAUSE: OLYMPIA INTERIORS LTD. and
MARY DAVID
Appellants
-and-
HER MAJESTY THE QUEEN
THE ATTORNEY GENERAL OF CANADA
Respondents
DATE OF HEARING: THURSDAY, NOVEMBER 22, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: MALONE J.A.
DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON THURSDAY, NOVEMBER 22, 2001.
APPEARANCES BY: Mrs. Mary David
For the Appellant, on her own behalf
Mr. Brian McPhadden
For the Respondent
SOLICITORS OF RECORD: Mrs. Mary David
451 West Street North, Unit #5
Orillia, Ontario
L3V 5E9
For the Appellant, on her own behalf
Page: 2
McPhadden, Samac Merner, Darling
Barristers & Solicitors
Suite 811
44 Victoria Street
Toronto, Ontario
M5C 1Z5
For the Respondent
FEDERAL COURT OF APPEAL
Date: 20011122
Docket: A-682-00
BETWEEN:
OLYMPIA INTERIORS LTD. and
MARY DAVID
Appellants
-and-
HER MAJESTY THE QUEEN
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT
OF THE COURT
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