Date:
20090310
Dockets: A-299-07
A-300-07
Citation: 2009 FCA 69
Present: NOËL
J.A.
A-299-07
BETWEEN:
ROBERT LANGLOIS
Appellant
and
HER MAJESTY THE
QUEEN
Respondent
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A-300-07
BETWEEN :
RALPH E. FARAGGI
Appellant
and
HER MAJESTY THE
QUEEN
Respondent
REASONS FOR ORDER
NOËL J.A.
[1]
These reasons
dispose of two applications brought pursuant to Rule 369 of the Federal
Courts Rules, SOR/98-106 for a stay of the judgements rendered by this
Court on January 12, 2008 dismissing the appellants’ respective appeals from
judgements of the Tax Court of Canada which upheld the validity of assessments
issued against each of the appellants.
[2]
The applications
are brought pursuant to section 65.1 of the Supreme Court Act, R.S.C.
1985, c. S-26, which provides in part:
|
Stay of execution
— application for leave to appeal
65.1 (1) The
Court, the court appealed from or a judge of either of those courts may, on
the request of the party who has served and filed a notice of application for
leave to appeal, order that proceedings be stayed with respect to the
judgment from which leave to appeal is being sought, on the terms deemed
appropriate.
Additional power for
court appealed from
(2) The court appealed from or
a judge of that court may exercise the power conferred by subsection (1)
before the serving and filing of the notice of application for leave to
appeal if satisfied that the party seeking the stay intends to apply for
leave to appeal and that delay would result in a miscarriage of justice.
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Demande
d’autorisation d’appel
65.1 (1) La
Cour, la juridiction inférieure ou un de leurs juges peut, à la demande de la
partie qui a signifié et déposé l’avis de la demande d’autorisation d’appel,
ordonner, aux conditions jugées appropriées, le sursis d’exécution du
jugement objet de la demande.
Pouvoir de la
juridiction inférieure
(2) La juridiction inférieure
ou un de ses juges, convaincu que la partie qui demande le sursis a l’intention
de demander l’autorisation d’appel et que le délai entraînerait un déni de
justice, peut exercer le pouvoir prévu au paragraphe (1) avant la
signification et le dépôt de l’avis de demande d’autorisation d’appel.
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[3]
The two applications
are framed in identical terms. The full text of the Notice of Motion reads as
follows:
PLEASE TAKE NOTICE that for the reasons
set out in the Petitioners’ affidavits and the Affidavits of Documents attached
hereto, Petitioners request a complete or partial suspension of the execution
of the Judgment rendered by the Federal Court of Appeal on December 12th,
2008 and of the tax assessments, until such time as the Supreme Court has ruled
on the Motion for Leave to Appeal that is presently pending before that Court.
[4]
Both the appellants
assert in the affidavit filed in support of their respective application:
…
Revenue Canada has refused any relief
at this point despite a request made for partial release of funds to enable me
to exercise my right to request leave to appeal to the Supreme Court of Canada;
I ask that $150,000 be
liberated for my use during the period that the motion for leave remains
pending, on such terms as the court sees fit;
…
No
other relief is sought in the affidavits filed in support of the motions.
[5]
The written
submissions filed in support of the motions are as follows:
1- The guiding principle in
a motion for suspension is to prevent irreversible harm and to maintain the statu
quo;
2- It is also important for
Parties to be able to continue to defend themselves in the proceedings;
3- Petitioners must prove:
1- An arguable case RJR-McDonald
v. Canada, [1994 1 S.C.R. 311;
2- Irremediable harm:
- Distribution
Percour Inc. v. Ville de Montréal and als, REJB 1998-04900
(C.A.);
- Corriveau v. Speer and
al.,
REJB 2001-25682 (C.A.);
- Congregation of the
Followers of the Rabbis of Belz to strenghthen Torah v. Municipality of
Val-Morin,
500-09-016048-050 (C.A.), 30 juillet 2008;
4- The Motion for Leave to
the Supreme Court shows a serious arguable case on any standard;
5- Given the relatively
liberal standard set out in RJR McDonald, supra, the existence of a very
serious case cannot be doubted;
6- This is not a
constitutional case and no law is to be inoperable for any period of time;
therefore the considerations of public interest in Manitoba (A.G.) v.
Metropolitain Stores Ltd., [1987] 1 S.C.R. 110 do not apply;
7- The cases cited in
paragraph 3(2) supra are fully applicable on the issue of irreversible
harm and the affidavits illustrate this;
[6]
The relief claimed is
stated as follows:
TO ALLOW the motion and its
conclusions
[7]
The respondent
opposes the applications on the ground that this Court is without jurisdiction
to grant the relief claimed and that in any event irreparable harm has not been
demonstrated. It adds that the balance of convenience operates in its favour.
[8]
With respect
to the jurisdictional issue, the respondent relies on subsection 225.1(2) of
the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) which
provides that the filing of an appeal to the Tax Court results in a statutory
stay preventing the Minister of National Revenue from collecting the amounts in
controversy. The respondent points out that this stay is only operational until
the decision of the Tax Court has been rendered and mailed to the taxpayer. It
follows that even if this Court was to stay the decisions which it rendered in
December 2008, pursuant to the authority conferred upon it by section 65.1 of
the Supreme Court Act, this would leave the decisions of the Tax Court
untouched and the power of the Minister to collect unaltered (compare Canadian
Pasta Manufacturers’ Assn. v. Aurora Importing & Distributing Ltd., [1996] F.C.J. No. 1055; 203 N.R. 232
(Q.L.)).
[9]
I
need not decide whether the jurisdiction of this Court is so limited in order to
dispose of the pending motions. The record shows that the appellants filed
their applications for leave before the Supreme Court before the due date. The supporting
Memorandum of Arguments was also filed in each case. Nothing more needs to be
done from the appellants’ perspective before their leave application is
referred to a panel of judges and decided. In short, the Supreme Court is in a
position to grant effective relief to the appellants, if it chooses to do so.
[10]
It
follows that no irreparable harm can be said to result from the existing state
of affairs. The situation may change in the event that leave is granted but
this is not an issue that can be addressed in the context of the present
application.
[11]
The
applications will be dismissed with costs computed on the basis of a single
application.
“Marc Noël”
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