Deshaies – Federal Court of Appeal criticizes the Federal Court for suggesting to CRA that it provide relief to a taxpayer

In affirming the decision below to deny judicial review of a decision of CRA to not recommend a remission order under s. 23(2) of the Financial Administration Act, Boivin JA stated:

The granting of a remission order is an exceptional measure which entails a derogation not only of the general taxation rules but also of the principle of equal treatment before the law.

The Court below, after denying relief, had added, in obiter:

Considering that the applicant likely doubly paid his taxes for the 2000 to 2003 taxation years, and considering the applicant’s mental health status during that period, the Court suggests that the CRA try to mitigate this taxpayer’s situation to the extent possible.

Boivin JA stated (at para. 7):

[These] remarks … were ill-considered. The tenor of the “Obiter” in leaving an impression that the appellant “likely” was doubly taxed and that the CRA should concern itself with this situation, not only contradicts the judgment but has the effect of creating expectations, which appear to us to be inopportune and unfortunate.

Neal Armstrong. Summary of Deshaies v. Canada, 2019 CAF 300 under Financial Administration Act, s. 23(2).