Date: 20041125
Docket: A-482-04
Citation: 2004 FCA 399
Present: SHARLOW J.A.
BETWEEN:
SATISH KUMAR
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, November 25, 2004.
REASONS FOR ORDER BY: SHARLOW J.A.
Date: 20041125
Docket: A-482-04
Citation: 2004 FCA 399
Present: SHARLOW J.A.
BETWEEN:
SATISH KUMAR
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1] On September 21, 2004, the appellant Satish Kumar filed a notice of appeal. The portion of his notice of appeal that is intended to describe the subject of his appeal reads as follows:
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THE APPELLANT APPEALS to the Federal Court of Appeal from the Judgment of The Honourable Justice E.A. Bowie of the Tax Court of Canada, dated July 23, 2004, by which the Court dismissed the Contempt of Court motion on the ground (one reason among others) that The Honourable Justice E.A. Bowie could not ascertain which auditor GST or CRA's purchase figures are correct. My request to ascertain, which auditor's (GST or CRA) purchase figures are correct and which of them are wrong, (to determine the correct inventory purchase figure for the years 1993 and 1994), was denied by the Tax Court of Canada on September 10, 2004, received on September 13, 2004.
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[2] The order dated July 23, 2004 dismissed Mr. Kumar's ex parte application for an order requiring the Minister of National Revenue and its counsel to show cause why they should not be held in contempt (the reasons are reported as Kumar v. Canada, 2004 D.T.C. 2048). The subsequent order referred to by Mr. Kumar is dated August 10, 2004 (not September 10, 2004). It dismissed Mr. Kumar's motion for an extension of time to move for reconsideration and amendment of a Tax Court judgment dated August 3, 1999, and an order dated September 14, 1999 dismissing Mr. Kumar's motion to reconsider that judgment.
[3] Before me are two motions relating to Mr. Kumar's appeal. The first is a motion by Mr. Kumar to determine the contents of the appeal book. The second is a motion by the Crown to quash Mr. Kumar's appeal. To put the two motions in context, it is necessary to understand the history of the case.
[4] On October 10, 1997, Mr. Kumar filed a notice of appeal in the Tax Court challenging income tax assessments for 1992, 1993 and 1994. His notice of appeal raised a number of issues. One was the correct determination of his closing inventory for 1994 and his cost of goods sold for the years under appeal, which would be elements in the computation of his business income for those years. The 1994 closing inventory amount may also be relevant for 1995.
[5] The appeal was heard on July 14, 1999 and allowed by a judgment issued on August 3, 1999. Among the adjustments set out in the order are these: his business loss for 1992 was increased by $5,600, his business income for 1993 was reduced to zero from $6,054, and his business loss for 1994 was increased by $4,900. The judgment does not specifically mention costs of goods sold or closing inventory amounts. The judgment of August 3, 1999 was not appealed.
[6] It appears that reassessments were made on the basis of the August 3, 1999 judgment, and that no objection or appeal was taken from those reassessments.
[7] On August 11, 1999, Mr. Kumar filed a notice of motion in the Tax Court arguing that the cost of goods sold and inventory amounts were accidentally omitted from the judgment, and that the error should be corrected by an amendment to the judgment. Two days later Mr. Kumar filed another notice of motion in the Tax Court alleging that, due to another error, his 1994 business loss should be increased from $4,900 to $8,132. The Crown opposed both motions. By order dated September 14, 1999, both motions were dismissed. Mr. Kumar did not appeal that order.
[8] Mr. Kumar subsequently attempted to obtain the agreement of Revenue Canada to the changes he considered were required to his purchases for 1992, 1993 and 1994, but those efforts did not succeed.
[9] On May 25, 2004, Mr. Kumar filed with the Tax Court an ex parte notice of motion for an order requiring the Minister and counsel to show cause why they should not be held in contempt. That motion was dismissed by order dated July 23, 2004.
[10] On July 26, 2004, Mr. Kumar filed another motion in the Tax Court seeking an extension of time to move for reconsideration and amendment of the August 3, 1999 judgment and the September 14, 1999 order. That motion was dismissed by order dated August 10, 2004.
Motion by Appellant to determine the contents of the Appeal Book
[11] The appeal book proposed by Mr. Kumar would include the following documents, as described by Mr. Kumar:
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(1) GST audit of 1994
(2) CRA appeal's division audit of 1997
(3) Related correspondence and tables prepared by CRA
(4) Related correspondence with the TCC
(5) List of purchase invoices for the years 1993 and 1994
(6) Copies of all the inventory purchase invoices
(7) "Set-off action" letter dated September 8, 2003
(8) "Contempt of Court" motion dated May 25, 2004
(9) "Affidavit of facts" dated June 29, 2004
(10) Order of TCC dated July 23, 2004
(11) "Reasons for Order" July 23, 2004
(12) Letter from Mr. J. David Power, Legal Counsel, TCC Ottawa, regarding "Contempt of Court" and it's effective date
(13) Letter of request to TCC dated August 13, 2004, for the date and time for the motion
(14) Letter of refusal dated September 10, 2004, from TCC, received on September 13, 2004
(15) Tables and correspondence related to the tax bill for the years 1993 and 1994(16) "Notice of Appeal" to the Federal Court of Appeal
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[12] The position of the Crown is that the appeal book should include only items (8), (9), (10), (11) and (16), because the other documents were not before the Judge when he made the order dismissing the motion for a show cause order, and because Mr. Kumar wishes to include them only because, in substance, he is attempting to challenge the judgment dated August 3, 1999.
[13] The root of the controversy is that the parties do not agree on exactly what Mr. Kumar has appealed. The Crown reads his notice of appeal as a challenge to the July 23, 2004 order only. Mr. Kumar takes the position that he is appealing both the July 23, 2004 order and the August 10, 2004 order.
[14] Section 337 of the Federal Court Rules, 1998, SOR/98-106, sets out the mandatory requirements for commencing an appeal to this Court. Paragraph 337(f) reads as follows:
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337. An appeal shall be commenced by a notice of appeal, in Form 337, setting out
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337. L'appel est introduit par un avis d'appel, établi selon la formule 337, qui contient les renseignements suivants :
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[...]
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[...]
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(f) the date and details of the order under appeal.
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f) la date et les particularités de l'ordonnance.
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[15] The purpose of paragraph 337(f) is to inform the respondent what decision it will be called upon to defend. Thus, the description of the order sought to be appealed is of critical importance.
[16] The portion of Mr. Kumar's notice of appeal that is intended to describe the notice under appeal states clearly that Mr. Kumar is appealing the July 23, 2004 order. However, while the subsequent order is mentioned, there is nothing in the notice of appeal stating that Mr. Kumar wishes to appeal that subsequent order. Therefore, I am compelled to conclude that Mr. Kumar has successfully commenced an appeal of only one order, which is the order dated July 23, 2004. I will deal with the motion to determine the contents of the appeal book on the basis that it is only the July 23, 2004 order that is under appeal.
[17] Generally, the purpose of an appeal is to determine whether the Judge who made the order under appeal complied with the law and properly considered the evidence submitted. For that reason, an appeal book cannot contain any document that was not before the Judge who made the order, except in the most unusual circumstances. I am unable to discern any such unusual circumstances in this case. Therefore, I will make an order that the appeal book in this case should consist of the following:
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(a) a table of contents describing each document in the appeal book;
(b) the notice of appeal filed September 21, 2004;
(c) the order of the Tax Court of Canada and reasons dated July 23, 2004;
(d) the notice of motion Mr. Kumar filed with the Tax Court on May 25, 2004;(e) the affidavit of facts Mr. Kumar filed with the Tax Court on June 29, 2004;
(f) the order issued with these reasons, and these reasons;
(g) a completed certificate in Form 344, signed by Mr. Kumar.
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Motion to quash the appeal
[18] Subsection 27(1.1) of the Federal Courts Act, R.S.C. 1985, c. F-7, provides that an appeal lies to this Court from any judgment or order of the Tax Court of Canada, subject to certain exceptions that are not relevant to this case. Subsection 52(a) provides that proceedings may be quashed for lack of jurisdiction, or where the proceedings are not taken in good faith.
[19] There is no doubt that this Court has the jurisdiction to consider Mr. Kumar's appeal of the July 23, 2004 order. After a careful review of the record, I am unable to conclude that the appeal has not been taken in good faith. Therefore, I will dismiss the Crown's motion to quash the appeal.
"K. Sharlow"
_____________________________________
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-482-04
STYLE OF CAUSE: SATISH KUMAR v. HER MAJESTY THE QUEEN
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: SHARLOW J.A.
DATED: November 25, 2004
WRITTEN REPRESENTATIONS BY:
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Satish Kumar
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FOR THE APPELLANT
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John Smithers
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Satish Kumar
Sydney, Nova Scotia
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FOR THE APPELLANT
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Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario
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FOR THE RESPONDENT
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