Dockets: A-238-14
A-239-14
A-240-14
A-241-14
Citation:
2015 FCA 102
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CORAM:
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STRATAS J.A.
RYER J.A.
NEAR J.A.
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BETWEEN:
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KIN FONG
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Appellant
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and
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HER MAJESTY THE
QUEEN
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on April
21, 2015).
STRATAS J.A.
[1]
Before the Court are four appeals from four
orders made by the Tax Court of Canada (per Justice Woods) on April 24,
2014. These are the Court’s reasons in the four appeals. We direct that a copy
of these reasons be placed in each appeal file.
[2]
Each of the orders dismisses motions brought by
the appellant within two appeals pending in the Tax Court of Canada (nos.
2012-5133(IT)G and 2013-3233(IT)G). Taken together, those appeals challenge the
Minister’s reassessments for the 2001-2009 taxation years.
[3]
Appeal A-239-14 concerns the scheduling of one
of the appeals for January 2015. That appeal did not proceed as scheduled. In
response to questioning from the panel, the appellant accepts that this appeal
is now moot. Therefore, we shall dismiss it on that basis.
[4]
In the three remaining orders under appeal, the
Tax Court dealt with a number of matters. These fall within two categories:
•
Requests for discretionary relief, such as a
production order against the Canada Revenue Agency, an amendment to an earlier
order, scheduling issues concerning a motion to strike and other matters; and
•
Requests for legal relief on the grounds that
the Minister does not have authority to make the assessments in issue, the Income
Tax Act, R.S.C. 1985, c. 1 (5th Supp.) is constitutionally invalid because,
among other things, the federal government cannot share its tax revenues with
the provinces, and the non-distinction between a flesh and blood living man and
a legal person is constitutionally invalid.
[5]
The first category concerns interlocutory,
discretionary matters of a procedural nature. In its memorandum, the Crown submits
that this Court will only intervene in such matters where there is an error of
law, a misapprehension of facts, a failure to give appropriate weight to all
relevant factors or an obvious injustice. Recently, this Court clarified the
standard of appeal for discretionary orders: Imperial Manufacturing Group
Inc. v. Decor Grates Inc., 2015 FCA 100. The standard of review for
discretionary matters, matters of mixed fact and law, is governed by Housen
v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, and is palpable and
overriding error. Under that standard, we do not reweigh and substitute our
discretion for the one under appeal.
[6]
We are not persuaded that palpable and
overriding error is present in any of the decisions falling under the first
category. In fact, the Tax Court’s discretionary decisions are amply supported
by the record before it.
[7]
In the second category, the Tax Court did not
err in law. It identified subsection 152(4) of the Income Tax Act as
the statutory source for the Minister’s authority to issue the assessments. The
appellant has supplied no viable constitutional basis for invalidating the
section or the Act. In particular, the federal government may share its tax
revenues with provinces: Guillemette v. The Queen (1999), 240 N.R. 384,
63 C.R.R. (2d) 364 at paragraph 3 (Fed. C.A.). The constitutional argument
about the non-distinction between a flesh and blood living man and a legal
person has been rejected repeatedly by this Court and has no basis whatsoever.
[8]
We shall dismiss the appeals. Costs will be
fixed in the total amount of $2,000 for all appeals, all inclusive.
"David Stratas"
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