Date: 20120314
Docket: A-405-10
Citation: 2012 FCA 88
CORAM: BLAIS C.J.
SHARLOW J.A.
MAINVILLE J.A.
BETWEEN:
BRIGITTE
GRATL
Appellant
and
HER
MAJESTY THE QUEEN
Respondent
Heard at Toronto,
Ontario, on March 14,
2012.
Judgment delivered from the Bench at Toronto, Ontario, on March 14, 2012.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW
J.A.
Date: 20120314
Docket: A-405-10
Citation: 2012
FCA 88
CORAM: BLAIS
C.J.
SHARLOW
J.A.
MAINVILLE
J.A.
BETWEEN:
BRIGITTE GRATL
Appellant
and
HER MAJESTY THE
QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from
the Bench at Toronto, Ontario, on March 14, 2012)
SHARLOW J.A.
[1]
The
appellant was assessed under the Income Tax Act, R.S.C. 1985, c. 1 (5th
Supp.) for 2001 and 2002. She appealed those assessments to the Tax Court of Canada.
The Crown filed a notice of motion in the Tax Court to strike out certain parts
of the third amended notice of appeal. In an order dated October 6, 2010, Justice
Bowie granted the Crown’s motion in part (2010 TCC 491). The appellant now appeals
to this Court.
[2] The appeal relates
primarily to paragraph 5 of the third amended notice of appeal, which reads as follows:
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5. The Appellant contends that her constitutional rights have
been infringed on the following basis:
a.
The Appellant
contends that she is being discriminated against vis-à-vis other lawyers by the
department's insistence that she receive clients at her satellite office in the
middle of the night contrary to the provisions of s. 7 and s. 15 of the Charter.
The taxpayer has offered her daily dockets and given sufficient explanations to
demonstrate that nightly work at the home office is a necessary part of the law
practice. The taxpayer spends her daytime hours at court, and her evening hours
seeing clients at the regular office, so that the only time during which necessary
Notices of Application, Notices of Appeal, Notices of Motion to vary final Orders,
Affidavits, Case Conference Briefs and many other documents which require a quiet
environment can be prepared is available after the taxpayer returns home and uses
the midnight and early morning hours for such preparations.
b.
The taxpayer
respectfully submits that the imposition of penalties is unjustified given the
taxpayer's inexperience as a lawyer, and as such amounts to cruel and unusual
punishment contrary to s. 12 of the Canadian Charter of Rights and Freedoms, should
some of the expenses charged against income be adjudged as inappropriate.
c.
The taxpayer
further respectfully submits that the failure of the tax department to disclose
the interest charged violates her entitlement to full disclosure contrary to s.
7 of the Charter. Without such disclosure, the taxpayer is in no position to ascertain
whether the interest charged has been properly calculated.
d.
Interest
accrual on a daily basis amounts to cruel and unusual punishment contrary to s.
12 of the Charter, specifically in the light of the fact that the tax department
benefits from the delay for which it alone is responsible in reviewing the taxpayer's
tax returns.
e.
Insofar as
the delay represents unfair treatment of the taxpayer, the provisions of s. 7
of the Charter are also engaged.
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[3] Justice Bowie’s
order strikes out paragraph 5 (with leave to amend to contest the disallowance of
expenses, the imposition of penalties and the computation of assessed interest without
reference to the Charter), and also strikes out consequential Charter
references elsewhere in the third amended notice of appeal.
[4] The appellant
takes the position that Justice Bowie erred in striking out paragraph 5 and the
consequential references to sections 7 and 12 of the Charter (she concedes
that the reference to subsection 15(1) of the Charter was properly struck
out). The Appellant wishes to be able to argue in the Tax Court, based on section
7 and 12 of the Charter, that: (1) she should be entitled to deduct what
she has claimed for office and other expenses, (2) she should be relieved of administrative
penalties, and (3) she should be relieved in part of the obligation to pay interest.
[5] Sections 7 and
12 of the Charter read as follows:
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7. Everyone has the right to life, liberty
and security of the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
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7. Chacun a droit à la vie, à la liberté et
à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en
conformité avec les principes de justice fondamentale.
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[…]
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[…]
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12. Everyone has the right not to be subjected
to any cruel and unusual treatment or punishment.
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12. Chacun a droit à la protection contre tous
traitements ou peines cruels et inusités.
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[6] The appellant argues
that the Tax Court has the jurisdiction to grant remedies based on the Charter.
We agree that the Tax Court has the legal authority to grant a Charter remedy.
However, we also agree with Justice Bowie’s conclusion that it is plain and obvious
that an order vacating or varying an assessment of tax, administrative penalties
and interest cannot be justified by section 7 or 12 of the Charter. In other
words, even if it is assumed that the facts alleged in paragraph 5 of the third
amended notice of appeal are true, they disclose no breach of section 7 or 12 of
the Charter.
[7] There is ample
jurisprudence in support of Justice Bowie’s conclusion. We need not cite all of
the cases, but we refer in particular to the decisions of the Federal Court of Appeal
in Main Rehabilitation Co. v. Canada, 2004 FCA 403,
and Kaulius v. Canada, 2003 FCA 371 (affirmed 2005 SCC 55, [2005] 2 S.C.R.
643), and the decision of the Supreme Court of Canada in Rodriguez v. British
Columbia (Attorney General), [1993] 3 S.C.R. 519.
[8] Under the Income
Tax Act as it now reads, and as it read in 2001 and 2002, an income tax assessment
is a civil matter involving only economic interests. It does not deprive the assessed
person of life, liberty or security of the person within the meaning of section
7 of the Charter, and it does not place the assessed person under state control
in a manner that could possibly be considered treatment or punishment within the
meaning of section 12 of the Charter.
[9] For these reasons,
the appeal will be dismissed with costs.
“K.
Sharlow”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-405-10
(APPEAL
FROM AN ORDER OF THE HON. MR. JUSTICE BOWIE, DATED OCTOBER 6, 2010, IN THE TAX
COURT OF CANADA, IN TAX COURT FILE NO.: 2009-3311 (IT) G.
STYLE OF CAUSE: BRIGITTE
GRATL v. HMQ
PLACE OF HEARING: TORONTO,
ONTARIO
DATE OF HEARING: MARCH 14, 2012
REASONS FOR JUDGMENT
OF THE COURT BY: BLAIS, SHARLOW, MAINVILLE JJ.A.)
DELIVERED FROM THE BENCH BY: SHARLOW J.A.
APPEARANCES:
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Brigitte Gratl
|
FOR
THE APPELLANT
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Arnold H. Bornstein
|
FOR
THE RESPONDENT
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SOLICITORS
OF RECORD:
|
Brigitte Gratl, J.D.
Waterloo, Ontario
|
FOR THE APPELLANT
|
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
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