Rothstein J.:-Th is is an application for an order suspending the operation of orders made pursuant to section 231.2 of the Income Tax Act requiring the respondents to provide information relating to unnamed persons. The motion states that the orders have been appealed to the Federal Court of Appeal and that it is just in the circumstances to suspend the orders pending appeal. Reliance is placed on Rule 341 A.
In the case of an application to stay execution of a court order, the Court will normally consider whether there is a serious issue at stake, irreparable harm to the parties and the balance of convenience.
No evidence was filed in support of these considerations by the respondents. The Minister filed evidence in opposition to the motion for the stay.
Nonetheless, even in the absence of evidence, counsel for the respondents says it is obvious there is a serious issue. For example, he says there is a question as to whether section 231.2 of the Income Tax Act contravenes section 8 of the Charter of Rights and Freedoms in respect of the requirement on third parties to disclose the names of unnamed persons. He also says it is obvious that the appeal will be rendered nugatory if the stay is not granted and that this constitutes irreparable harm. In terms of the balance of convenience, he says the respondents are innocent third parties who are not the subject of reassessment by the Minister.
Counsel for the Minister denies there is a serious issue. He says the decision appealed from is based on factual considerations with which the Court of Appeal will not interfere. As to irreparable harm, he says the Minister will suffer such harm by further delay. The affidavit of Brian Kennedy dated June 1, 1995, concludes:
As a result, if the order of Mr. Justice Rothstein is stayed than [sic] the taxation years of any unnamed purchasers of the seismic data in 1990 and 1991 are most likely becoming "statute- barred" under subsection 152(4) of the Income Tax Act [if they have not already become so] and that unless misrepresentation 1s involved, the Minister of National Revenue will be unable to reassess those taxation years.
This stay application must be dismissed if for no other reason than for lack of evidence. It is fundamental that a Court may only make decisions based on evidence. While I do not doubt the words of the motion that a notice of appeal has been filed, the motion is merely the submission of counsel. The assertions in a motion do not constitute evidence. I have no evidence before me to prove that the notice of appeal has been filed. Without that evidence there is no basis for the stay application.
However, even if a requirement that there be evidence that a notice of appeal has been filed might be considered unnecessarily particular (which I do not concede), and even if a serious issue might be derived from a reading of the reasons appealed from, irreparable harm certainly requires cogent evidence. Even if the refusal to grant a stay renders an appeal nugatory, this is not synonymous with irreparable harm. The Court has said on numerous occasions that evidence of irreparable harm must be clear and not speculative. The respondents, by the orders sought to be stayed, are required to disclose the names of unnamed persons which, if they are successful on appeal, they would not be required to disclose. But there is no evidence of the consequences to the respondents of such disclosure. There must be some evidence as to why such disclosure would cause irreparable harm to the respondents. The Court cannot be left to speculate. The respondents have not proven irreparable harm.
While the failure of the respondents to prove irreparable harm is, in my view, fatal, I would add that the Minister has filed evidence demonstrating why he will suffer irreparable harm if delay results and limitation periods are missed, thereby causing him to lose the opportunity to reassess taxpayers.
In the absence of evidence supporting the stay application by the respondents, and having regard to the evidence filed by the Minister, I must dismiss this stay application.
Application dismissed.
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