Date: 20080904
Docket: A-385-08
Citation: 2008 FCA 254
Present: RYER
J.A.
BETWEEN:
KATHRYN KOSSOW
Applicant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
RYER J.A.
[1]
This is a
motion by Kathryn Kossow for an order staying the proceedings in the Tax Court
of Canada, in particular the hearing of her appeal in file 2005-1974(IT)G that
is scheduled to be heard in that Court on September 8, 2008, pending the
determination of her appeal in this Court in file A-385-08.
[2]
To succeed
in this motion for a stay, Ms. Kossow must satisfy the tripartite test set
forth in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.
Accordingly, Ms. Kossow must show that there is a serious issue to be tried,
that she will suffer irreparable harm if the motion is not granted and that the
balance of convenience favours the granting of the motion.
Serious Issue to be Tried
[3]
In her
notice of appeal in file A-385-08, Ms. Kossow raises a number of issues for this
Court’s consideration in that appeal. The Crown has essentially conceded that
at least some of these issues meet the low threshold with respect to whether
there is a serious issue to be tried. Having considered the notice of appeal
and the other materials that were provided to the Court, in my view, this
concession is warranted. Accordingly, this requirement of the RJR-MacDonald
test has been satisfied. In so concluding, I am expressing no opinion as to the
outcome of any of the issues that will be considered in the appeal in file
A-385-08.
Irreparable Harm
[4]
Jurisprudence
in this Court has determined that irreparable harm can be established where the
denial of an application for a stay will result in an appeal of the applicant
for the stay becoming moot. See Wyndowe v. Rousseau, 2006 FCA 422; Bining
v. Canada, 2003 FCA 286 and Bisaillon
v. Canada (1999), 251 N.R. 225 (F.C.A.).
[5]
Ms. Kossow
argues that she will suffer irreparable harm if she is required to proceed with
the hearing in the Tax Court of Canada without the benefit of this Court’s
judgment in her appeal in file A-385-08. In essence, she contends that her
appeal right will be lost without a stay of the proceedings in the Tax Court of
Canada. Having regard to the circumstances disclosed in the materials that were
provided to the Court, I am inclined to agree with this contention and I am
satisfied that if the hearing in the Tax Court of Canada proceeds as scheduled,
the appeal before this Court will, at least to some extent, become moot. Accordingly,
I am satisfied that the second requirement of the RJR-MacDonald test has
been established.
Balance of Convenience
[6]
Under this
portion of the RJR-MacDonald test, the Court is required to determine
which of the parties would suffer greater harm from the grant or the refusal to
grant the stay that has been requested.
[7]
According
to the Crown, the hearing that will take place in the Tax Court of Canada has
the potential to impact as many as 1,500 other taxpayers whose circumstances
are similar to those of Ms. Kossow. In these circumstances, I am of the view
that it is important that Ms. Kossow should be as well prepared, as reasonably
practicable, for that hearing, in fairness to her and all of the other
potentially affected taxpayers. In my view, the hardship that may be visited
upon the Crown as a result of the delay of the hearing in the Tax Court of
Canada will be less than the hardship that may be suffered by Ms. Kossow, and
potentially a large number of other taxpayers, if she is required to proceed
with that hearing without being as well prepared, as reasonably practicable,
for that hearing, as might be the case if she is deprived of her appeal right
in this Court in file A-385-08. Accordingly, I am satisfied that the third
requirement of the RJR-MacDonald test has been established.
Disposition
[8]
For the
foregoing reasons, the proceedings in the Tax Court of Canada in file 2005-1974(IT)G
will be stayed until the final disposition of the appeal in this Court in file A-385-08.
[9]
In the
circumstances, I am of the view that Ms. Kossow must do her part to ensure an
expeditious disposition of the appeal in this Court. Accordingly, the grant of
the stay will be subject to the condition that the time within which the
agreement as to the contents of the appeal book is required to be filed, in
accordance with Rule 343(1) of the Federal Courts Rules, is extended to
September 30, 2008, and all subsequent steps in the appeal must proceed in
strict compliance with the timelines prescribed in the Federal Courts Rules.
If Ms. Kossow should fail to comply with this condition, it will be open to the
Crown to apply to a justice of this Court to quash the stay.
[10]
Costs will
be in the cause.
“C.
Michael Ryer”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-385-08
STYLE OF CAUSE: Kathryn
Kossow Applicant
and
Her
Majesty the Queen Respondent
MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCE OF PARTIES
REASONS FOR ORDER BY: RYER J.A.
DATED: September 4, 2008
WRITTEN REPRESENTATIONS BY:
|
A. Christina Tari
Leigh Somerville Taylor
|
FOR THE APPLICANT
|
|
Arnold H. Bornstein
Lorraine Edinboro
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Richler and Tari
Toronto, Ontario
|
FOR THE APPLICANT
|
|
John H. Sims,
Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
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