2017 FCA 89
HER MAJESTY THE
This is an appeal from a judgment rendered by a
judge of the Tax Court of Canada who did not hear the appeal before that Court.
The appeal in this case was heard on November 18, 19, 20 and 21, 2013 by a
particular judge of the Tax Court and judgment was rendered on October 1, 2015
by a different judge of that Court (2015 TCC 232).
The appeal from this judgment was heard shortly
after the appeal was heard in High-Crest Enterprises Limited v. Her Majesty
the Queen, 2017 FCA 88. In both cases a file was removed from the same Tax
Court Judge who heard the tax appeals and reassigned to another judge to render
Even though the parties in this case did not
raise the issue of whether the Chief Justice of the Tax Court had the power to
remove the file from the Tax Court Judge who heard the matter and reassign it
to another judge to render a decision, this is a matter that must be addressed.
This Court must first determine if the judgment rendered by the second judge in
this case is a nullity, even though this issue was not raised by the parties (Teva
Canada Ltd. v. Pfizer Canada Inc. 2016 FCA 218, 141 C.P.R. (4th)
165, at paras. 6 and 7). Hence, prior to the hearing, this Court asked for
submissions on this issue. The parties also provided additional submissions
following the hearing.
In High-Crest I concluded that the Chief
Justice of the Tax Court did not have the power to remove the file from this
particular judge and reassign it to another judge to render judgment. The
conclusion and reasons are equally applicable in this case and I would adopt
the conclusion that the Chief Justice of the Tax Court did not have the power
to remove the file from the judge who heard the tax appeal in this case for the
reasons as set out in High-Crest. As a result, the decision rendered by
the second judge is a nullity and I would refer the matter back to the judge
who heard the tax appeal to render judgment.
I would also not provide any comments on the
decision that was written in this case. I would only note that any findings of
fact are to be made by the judge who heard the tax appeal.
As a result, I would allow the appeal, set aside
the judgment that was rendered by the Tax Court and refer the matter back to
the Tax Court Judge who heard the tax appeal to render judgment. Given the
circumstances of this case, I would not award costs.
“Wyman W. Webb”
A.F. Scott J.A.”
STRATAS J.A. (Dissenting Reasons)
In this case, I follow the three-fold analytical
framework I set out in my dissenting reasons in High-Crest Enterprises
Limited v. Canada (A.G.), 2017 FCA 88.
The parties did not object to the Chief
Justice’s decision to reassign the case to another judge. In this Court, the
appellant did not raise the issue.
This Court raised the issue because it went to
the subject-matter jurisdiction of this Court to hear the appeal. If the Chief
Justice could not reassign the matter, then the judge who heard this matter
could not have heard and rendered judgment on it.
For the reasons I gave in High-Crest, I
find that the Chief Justice did have the jurisdiction to reassign. As the
appellant did not object below, the issue whether the Chief Justice properly
exercised his discretion, even if it were raised by the appellant, is a new
issue on appeal. I would decline to consider it: Quan v. Cusson, 2009
SCC 62,  3 S.C.R. 712; Performance Industries Ltd. v. Sylvan Lake Golf
& Tennis Club Ltd., 2002 SCC 19,  1 S.C.R. 678; High-Crest
at paras. 94-95. Similarly, the failure to object to any procedural fairness
deficiency below constitutes waiver: High-Crest at paras. 102-103.
Were I writing for a majority of this Court in
this case, I would now go on to deal with the substantive merits of the appeal.
I shall refrain from doing so, just as I did in High-Crest at paras. 121
and 123. Even if I were to agree with my colleague’s reasoning and conclusions
concerning the Chief Justice’s decision to reassign the case to a new judge, I
would disagree with his proposed disposition of the appeal. I repeat and rely
on my comments in High-Crest at paras. 118-120. Overall, the comments I
made in High-Crest at paras. 125-126 apply here as well.