Date: 20031023
Docket: A-229-02
Citation: 2003 FCA 395
CORAM: ROTHSTEIN J.A.
SEXTON J.A.
MALONE J.A.
BETWEEN:
RON S. SOURANI
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Toronto, Ontario, on October 20, 2003.
Judgment delivered at Toronto, Ontario, on October 23, 2003.
REASONS FOR JUDGMENT BY: ROTHSTEIN J.A.
CONCURRED IN BY: SEXTON J.A.
MALONE J.A.
Date: 20031023
Docket: A-229-02
Citation: 2003 FCA 395
CORAM: ROTHSTEIN J.A.
SEXTON J.A.
MALONE J.A.
BETWEEN:
RON S. SOURANI
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
ROTHSTEIN J.A.
[1] This appeal from a decision of Mogan J. of the Tax Court dated April 3, 2003, hinges entirely on the interpretation of the words:
...the parties agree that they will consent to judgment in terms consistent with the decision of the Federal Court of Appeal...in the matter of Thomas M.G. Schultz and Lois Schultz v. H.M.Q....
in paragraph 1 of an agreement dated May 25, 1995.
[2] The Schultz appeal was dismissed by this Court on November 2, 1995 (see Schultz v. Canada (C.A.), [1996] 1 F.C. 423). The appellant submits that the Court in Schultz held that the determination of whether the Minister acted with all due dispatch requires a consideration of the particular circumstances of each case. The appellant thus says that he is not bound to consent to judgment because the Court must look at the circumstances of his case before it can render a decision.
[3] In making this argument, the appellant is misinterpreting the words of paragraph 1 of the May 25, 1995, agreement. The agreement is that he will consent to judgment in terms consistent with the decision in Schultz, not that his circumstances must be found to be consistent with those ofSchultz (emphasis added). The purpose of the agreement was to avoid the need to have individual trials to consider each and every taxpayer's particular circumstances. In the context of an agreement to consent to judgment, it was the disposition in Schultz to which the parties agreed to be bound. The interpretation of paragraph 1 put forward by the appellant, one which would require the Court to look at his particular circumstances, is inconsistent with the words and the context of the agreement. Mogan J. was thus correct to hold that since the Schultz appeal had been dismissed, he was bound to dismiss the appellant's appeal.
[4] Even if the appellant's interpretation of the agreement was correct, the circumstances to which Stone J.A. was referring in Schultz were essentially that over 200 taxpayers were involved in similar investment club transactions and that more than 1000 taxpayers were being investigated with regard to convertible hedging transactions (para. 34). Given the number and complexity of the transactions, he held that "the Minister had acted 'with all due dispatch' in the circumstances" (para. 36). The appellant was part of the same large group of taxpayers as Schultz and his appeal should also be dismissed.
[5] The Schultz decision being determinative, Mogan J. found that the appellant's motion with respect to production of documents from the Crown was irrelevant. In this respect, it should be observed that by an agreement dated April 28, 1995, the appellant agreed that the sole issue to be decided in his appeal was whether the "...Minister of National Revenue exercised his statutory duty described in paragraph 165(3) of the Income Tax Act with all due dispatch, and, if not, the legal consequences arising therefrom." In Schultz, this Court determined that the Minister did act with all due dispatch. That finding was binding on the appellant. Mogan J. was correct to conclude the production of documents from the Crown in these circumstances was irrelevant.
[6] The appeal should be dismissed with costs.
"Marshall Rothstein"
J.A.
"I agree
J. E. Sexton"
"I agree
B. Malone"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-229-02
STYLE OF CAUSE: RON S. SOURANI
Appellant
and
HER MAJESTY THE QUEEN
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 20, 2003
REASONS FOR JUDGMENT: ROTHSTEIN J.A.
CONCURRED IN BY: SEXTON J.A.
MALONE J.A.
DATED: OCTOBER 23, 2003
APPEARANCES:
Mr. Ron S. Sourani FOR THE APPELLANT, ON HIS OWN BEHALF
Mr. Paul Mallete
Mr. John Grant FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ron S. Sourani FOR THE APPELLANT, ON HIS OWN BEHALF
Markham, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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