Docket: T-81-17
Citation:
2017 FC 778
Ottawa, Ontario, August 18, 2017
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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ELIZABETH
BERNARD
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Applicant
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and
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MINISTER OF
NATIONAL REVENUE
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Respondent
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JUDGMENT AND REASONS
[1]
This is a motion by the Respondent to strike the
underlying judicial review application on the grounds that it has been rendered
moot due to legislative amendments. The Respondent argues that there is no
remaining lis between the parties, while no practical purpose would be served
by the Court rendering a decision in the matter.
[2]
The Applicant is contesting a decision of the
Minister relieving labour organizations and labour trusts from having to file
an information return for fiscal periods starting in 2017 pursuant to the previous
section 149.01 of the Income Tax Act, RSC, 1985, c 1 (5th
Supp) [ITA]. Failure to comply with the reporting requirements was at the time
an offence punishable by section 239(2.31) of the ITA. Both sections 149.01 and
239(2.31) of the ITA were repealed as of June 18, 2017.
[3]
The Minister had applied her discretion to waive
the reporting requirements applicable to labour organizations and labour trusts
under section 149.01 of the ITA for their financial period starting 2017.
[4]
The Minister maintains the discretion conferred
by express statutory authority to waive the obligation to file any form or
return mandated under section 220 (2.1) of the ITA.
[5]
A motion to strike an application for judicial
review should only succeed if the application is so clearly improper as to have
no chance of success (Canada (National Revenue) v JP Morgan Asset Management
(Canada) Inc., 2013 FCA 250 at para 47).
[6]
Two requirements are required to be met to
strike an appeal for mootness (Borowski v Canada (Attorney General),
[1989] 1 S.C.R. 342 at p 353 [Borowski]). First, the Court must determine
whether there is a live controversy. Second, the Court may exercise its
discretion to address the issue in consideration of the following relevant
factors:
(a) the Court’s
competence to resolve legal disputes rooted in the adversary system;
(b) the concern for judicial economy; and
(c) the need for the Court to demonstrate a
measure of awareness of its proper law-making function.
[7]
I agree that there is a lack of live
controversy. There is no filing requirement that the Minister could enforce for
the fiscal periods, while the labour organizations or labour trusts cannot be
punished if no offence is committed. Even if information returns were filed,
the Canada Revenue Agency is prohibited from publishing information returns on
its website now that the exception to subsection 241(1) contained in section
149.01 is repealed. Accordingly, setting aside the waiver cannot possibly serve
any practical purposes.
[8]
The Applicant argues that the issues in the application
involve the consideration of the parameters of the discretion conferred by the
Minister by subsection 220(2.1) , which reads as follows:
(2.1) Where any
provision of this Act or a regulation requires a person to file a prescribed
form, receipt or other document, or to provide prescribed information, the
Minister may waive the requirement, but the person shall provide the document
or information at the Minister’s request.
[9]
She claims that the exercise of discretion to
waive the requirement to keep books and records is an issue that transcends the
repealed provisions. I do not agree.
[10]
The existence of a controversy is not sufficient
in the context of the first step of the test for mootness. The resolution of
the controversy must have a practical effect as summarized in Borowski
at page 353 as follows:
“The general
principle applies when the decision of the court will not have the effect of
resolving some controversy which affects or may affect the rights of the
parties. The decision of the court will have no practical effect on such rates,
the court will decline to decide the case.”
[11]
The Applicant further contends that even if there
is no live controversy, the Court should exercise its discretion to allow the
judicial review of the Minister’s decision to proceed. She first argues that a
live controversy continues to exist because of the lack of original foundation
to invoke the provisions in question. However, the application will not resolve
a live controversy affecting the rights of the parties or any related issue
inasmuch as labour organizations and labour trust no longer have any obligation
to file information returns and nor can the provisions be enforced.
[12]
Additionally, the concerns for judicial economy
favour declining the exercise of discretion to address these issues, while
pronouncing judgment in the absence of a dispute might be viewed as an
intrusion in the role of the legislative branch (Borowski, supra pp 362,
365).
[13]
Finally, it is noted that the Applicant no
longer claims a private interest in this matter. Accordingly, she cannot
buttress her application and claim new grounds for genuine interests that were
not initially alleged in her application, such that she likely lacks public
standing.
[14]
Four all of the reasons described above, the
motion to strike is allowed with costs. If the parties are unable to agree on a
reasonable cost figure, they should be assessed on the basis of Tariff B, under
Column III of the Federal Courts Rules, SOR/98-106 [the Rules].
[15]
In addition, an interim order is also granted to
the Respondent providing an extension of time for compliance with all further
steps in the litigation, including the compliance with rules 317 and 318 of the
Rules until this motion has been finally decided.
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