Date: 20090908
Docket: A-241-09
Citation: 2009 FCA
257
CORAM: NOËL J.A.
PELLETIER J.A.
TRUDEL
J.A.
BETWEEN:
FIDUCIE
DAUPHIN, 9125-9622 QUÉBEC INC., CHANTAL FRÉGAULT, STÉPHANE DESCOTEAUX, SOPHIE
LEBEL, NORMAND DESCOTEAUX
Applicants
and
HER
MAJESTY THE QUEEN
Respondent
Dealt with in writing without appearance
of parties.
Order delivered at Ottawa, Ontario, on September 8, 2009.
REASONS FOR
ORDER BY: TRUDEL
J.A.
CONCURRED IN BY: NOËL
J.A.
PELLETIER
J.A.
Date:
20090908
Docket:
A-241-09
Citation: 2009 FCA 257
CORAM: NOËL
J.A.
PELLETIER
J.A.
TRUDEL
J.A.
BETWEEN:
FIDUCIE
DAUPHIN, 9125-9622 QUÉBEC INC., CHANTAL FRÉGAULT, STÉPHANE DESCOTEAUX, SOPHIE
LEBEL, NORMAND DESCOTEAUX
Applicants
and
HER MAJESTY
THE QUEEN
Respondent
REASONS FOR ORDER
TRUDEL J.A.
[1]
The
Federal Court dismissed the applicants’ applications by which they sought,
among other things, to set aside the ex-parte collection order made
against them under subsections 225.2(2) and (3) of the Income Tax Act,
R.S.C., 1985, c. 1 (5th Supp.) (ITA).
[2]
The
applicants filed an application for judicial review before this Court to
reverse the judgment of the Federal Court (2009 FC 346).
[3]
The
respondent requests that the application be struck out and dismissed. The
applicants did not file a record in reply and are out of time to do so.
[4]
It is
clear that the Federal Court made its decision pursuant to subsections 225.2(8)
and (11) of the ITA, which provide as follows:
(8) Where a judge of a court
has granted an authorization under this section in respect of a taxpayer, the
taxpayer may, on 6 clear days notice to the Deputy Attorney General of Canada, apply to a judge of the court to review
the authorization.
(11) On an application under
subsection 225.2(8), the judge shall determine the question summarily and may
confirm, set aside or vary the authorization and make such other order as the
judge considers appropriate.
[5]
Moreover,
under subsection 225.2(13) of the ITA, the review order made in
accordance with the above subsections is not subject to appeal:
(13) No appeal lies from an
order of a judge made pursuant to subsection 225.2(11).
[6]
In
applying for judicial review of a decision of the Federal Court, the applicants
are trying to do indirectly what they cannot do directly.
[7]
Subsection
225.2(13) would be of no effect if it could be circumvented by the mere choice
of another procedural vehicle, provided that this other proceeding is even
available to the applicants. However, for the purposes of the application at
issue, it is not necessary to discuss the merits of the applicants’ approach
any further.
[8]
Accordingly,
I would dismiss the applicants’ application for judicial review with costs.
“Johanne
Trudel”
“I
agree.
Marc
Noël J.A.”
“I
agree.
J.D.
Denis Pelletier J.A.”
Certified
true translation
Sarah
Burns
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-241-09
STYLE OF CAUSE: Fiducie
Dauphin et al. v. Her Majesty the Queen
MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCE OF PARTIES
REASONS FOR ORDER BY: TRUDEL J.A.
CONCURRED IN BY: NOËL
J.A.
PELLETIER J.A.
DATED: 20090908
WRITTEN REPRESENTATIONS BY:
|
Sébastien Sénéchal
|
FOR THE APPLICANTS
|
|
Martin
Lamoureux
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Bardagi Sénéchal Inc.
Montréal, Québec
|
FOR THE APPLICANTS
|
|
John H. Sims,
Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
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