Date: 19980311
Docket: A-462-97
CORAM: STRAYER J.A.
DÉCARY J.A.
ROBERTSON J.A.
BETWEEN:
THE MINISTER OF NATIONAL REVENUE
Applicant
- and -
MID-CANADA RAIL CONTRACTORS LTD.
Respondent
Heard at Saskatoon (Saskatchewan) on Wednesday, March 11, 1998.
Judgment delivered from the Bench on March 11, 1998.
REASONS FOR JUDGMENT
OF THE COURT DELIVERED BY: DÉCARY J.A.
Date: 19980311
Docket: A-462-97
CORAM: STRAYER J.A.
DÉCARY J.A.
ROBERTSON J.A.
BETWEEN:
THE MINISTER OF NATIONAL REVENUE
Applicant
- and -
MID-CANADA RAIL CONTRACTORS LTD.
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Saskatoon (Saskatchewan)
on Wednesday, March 11, 1998)
DÉCARY J.A.
[1] The only issue in this application by the Minister of National Revenue ("the Minister") for judicial review of a decision of the Tax Court of Canada ("the Tax Court") is one of costs.
[2] The decision was made under the Unemployment Insurance Act1. The Minister had determined that a stacker who had claimed to be an employee of the respondent for unemployment insurance purposes was indeed such an employee. The respondent appealed to the Tax Court, which allowed the appeal. In allowing the appeal, the Tax Court Judge awarded the respondent "$200 in travel allowance and compensation with respect to this appeal".
[3] The Minister challenges before us the authority of the Tax Court Judge to order costs. The respondent has informed the Court that it had not sought costs before the Tax Court, that it does not contest the Minister's application and that it will not appear before us on the understanding that the Minister would not be asking for costs of this application.
[4] This Court has on various occasions found that pursuant to subsection 71(2) of the Unemployment Insurance Act2 the Tax Court lacks authority to order the payment of costs where the party had not been "requested by the court to attend before it".3
[5] Furthermore, effective as of December 11, 1996, subsection 24(5) of the Tax Court of Canada Rules of Procedure respecting the Unemployment Insurance Act4 provides that no amount is payable to an appellant who has not been called upon the testify by another party to the appeal.
[6] In the present case, in the absence of any evidence of subpoena or other request by the Court for the respondent's attendance, costs could simply not be awarded by the Tax Court against the Minister.
[7] The application must therefore be allowed, that portion of the judgment of the Tax Court of May 5, 1997 awarding payment of $200 to the respondent must be set aside, and the matter must be referred back to the Tax Court for redetermination on the basis that in these circumstances disbursement for travel allowance and compensation cannot be awarded.
"Robert Décary"
J.A.
__________________
1 R.S.C. 1985, c. U-1.
2 Subsection 71(2) of the Unemployment Insurance Act reads as follows:
(2) Where, on an appeal to the Tax Court of Canada from a decision of the Minister, a person affected by the decision is requested by the court to attend before it on the consideration of the appeal and so attends, he shall be paid such travel and other allowances, including compensation for loss of remunerative time, as are approved by the Treasury Board.
3 See: Canada (Attorney General) v. Shelstad (8 February 1994), A-271-93, (F.C.A.). [unreported] and Canada (Attorney General) v. Skimming (29 May 1996), A-797-95 (F.C.A.) [unreported].
4 SOR/96-506, s. 2, which reads as follows:
(5) An amount is not payable under subsection (4) in respect of an appellant, a respondent or a person who has intervened under suction 9 unless the appellant, respondent or person has been called upon to testify by another party to the appeal.
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