Tremblay-Lamer
J.:
This
is
an
application
for
judicial
review
of
the
decision
of
Denis
G.
Fading,
Chief
of
Appeals,
Revenue
Canada,
wherein
he
refused
to
waive
the
penalty
imposed
on
the
Applicant
for
the
late
filing
of
its
remittance.
The
corporate
Applicant
was
required
to
make
its
remittance
for
the
month
of
February
1995,
by
March
15,
1995.
According
to
the
affidavit
of
Lance
G.A.
Vrabek,
who
was
contracted
by
the
Applicant
to
handle
certain
financial
tasks,
the
remittance
was
mailed
on
the
evening
of
March
10,
1995.
However,
Revenue
Canada
only
received
it
on
March
17,
1995.
As
a
result,
the
Applicant
was
assessed
a
late
filing
penalty
in
the
amount
of
$250.76.
The
Applicant
requested
relief
pursuant
to
subsection
220(3.1)
of
the
Income
Tax
Act!
which
allows
the
Minister
to
waive
or
cancel
such
penalties.
Revenue
Canada
refused
to
cancel
the
penalty.
The
Applicant
submitted
another
request
for
relief
which
was
referred
to
Denis
G.
Fading,
Chief
of
Appeals.
Mr.
Fading
concluded
that
the
cancellation
of
the
Applicant’s
penalty
was
not
warranted.
Specifically,
he
noted
that
the
Applicant
had
a
history
of
being
late
in
making
remittances:
I
note
that
this
is
not
the
first
time
that
this
client
[Protech
Construction
Ltd.]
has
been
late
in
making
remittances
and
the
last
time
the
[sic]
your
client
was
advised
that
payment
ought
to
be
made
at
a
financial
institution
by
the
due
date
in
order
to
avoid
the
penalty,
I
understand
there
was
agreement
to
do
this
and
you
state
in
your
letter
that
you
normally
would
make
the
payment
at
the
financial
institution.
I
view
this
as
a
matter
of
choice
how
that
payment
ought
to
be
made
knowing
that
there
is
a
risk
that
it
would
be
late
if
it
went
through
the
mail
and
since
this
is
a
repeat
occurrence
I
do
not
think
that
the
penalty
ought
to
be
cancelled.
The
Applicant
submits
that
the
Minister
failed
to
apply
the
assessment
of
remittance
penalties
in
a
fair
and
consistent
manner.
In
his
affidavit,
Lance
Vrakek
states
he
mailed
a
second
remittance
on
behalf
of
another
company
at
the
same
time
as
the
Applicant’s
one.
This
second
remittance
was
received
by
Revenue
Canada
on
March
16,
and
yet
no
penalty
was
assessed.
Further,
the
Minister
erred
in
not
recognizing
that
the
decision
to
waive
the
penalty
should
be
based
on
the
Applicant’s
agent’s
record
and
not
on
the
Applicant’s
one.
Finally,
the
Minister
also
erred
in
not
recognizing
errors
made
by
Revenue
Canada,
which
are
possibly
contributing
factors.
The
Respondent
submits
that
in
the
circumstances
of
this
case,
the
Court’s
intervention
is
not
warranted
because
the
Minister,
through
his
delegate,
properly
exercised
his
discretion.
His
decision
was
based
on
relevant
considerations
and
made
in
a
rational
manner
with
regard
to
all
the
facts
before
him.
As
previously
stated,
subsection
220(3.1)
of
the
Income
Tax
Act
gives
the
Minister
of
National
Revenue
the
discretion
to
cancel
or
waive
a
penalty.
The
subsection
reads:
220(3.1)
The
Minister
may
at
any
time
waive
or
cancel
all
or
any
portion
of
any
penalty
or
interest
otherwise
payable
under
this
Act
by
a
taxpayer
or
partnership
and,
notwithstanding
subsections
152(4)
to
(5),
such
assessment
of
the
interest
and
penalties
payable
by
the
taxpayer
or
partnership
shall
be
made
as
is
necessary
to
take
into
account
the
cancellation
of
the
penalty
or
interest.
220(3.1)
Le
ministre
peut,
à
tout
moment,
renoncer
à
tout
ou
partie
de
quelque
pénalité
ou
intérêt
payable
par
ailleurs
par
un
contribuable
ou
une
société
de
personnes
en
application
de
la
présente
loi,
ou
l’annuler
en
tout
ou
en
partie.
Malgré
les
paragraphes
152(4)
à
(5),
le
ministre
établit
les
cotisations
voulues
concernant
les
intérêts
et
pénalités
payables
par
le
contribuable
ou
la
société
de
personnes
pour
tenir
compte
de
pareille
annulation.
In
order
to
assist
in
the
exercise
of
that
discretion,
the
Minister
has
implemented
guidelines
to
be
followed
in
applying
the
legislation.
Revenue
Canada
Information
Circular
92-2
dated
March
18,
1992,
is
particularly
relevant.
Paragraph
10
provides:
10.
The
following
factors
will
be
considered
when
determining
whether
or
not
the
Department
will
cancel
or
waive
interest
or
penalties:
(a)
whether
or
not
the
taxpayer
or
employer
has
a
history
of
compliance
with
tax
obligations;
(b)
whether
or
not
the
taxpayer
or
employer
has
knowingly
allowed
a
balance
to
exist
upon
which
arrears
interest
has
accrued;
(c)
whether
or
not
the
taxpayer
or
employer
has
exercised
a
reasonable
amount
of
care
and
has
not
been
negligent
or
careless
in
conducting
their
affairs
under
the
self-assessment
system;
(d)
whether
or
not
the
taxpayer
or
employer
has
acted
quickly
to
remedy
any
delay
or
omission.
It
is
settled
law
that
the
scope
of
judicial
review
of
discretionary
decisions
is
quite
narrow.
Where
the
discretion
has
been
exercised
in
good
faith,
in
accordance
with
the
principles
of
natural
justice,
taking
into
account
all
relevant
considerations
and
without
reliance
placed
upon
irrelevant
ones,
the
Court
should
not
interfere.
In
the
case
at
bar,
there
is
no
evidence
that
the
Minister’s
delegate
improperly
exercised
his
discretion.
First,
the
decision
of
the
Chief
of
Appeals
is
rational
and
based
on
relevant
considerations.
When
assessing
the
particular
circumstances
of
this
case,
the
Chief
of
Appeals
took
into
account
the
considerations
outlined
in
paragraph
10
of
its
own
guidelines.
In
fact,
he
took
into
account
the
Applicant’s
history
of
non-compliance
with
its
tax
obligations.
Second,
whether
or
not
taxpayers
have
been
assessed
penalties
in
similar
situations
is
irrelevant.
As
stated
by
Rouleau
J.
in
Kaiser
v.
Minister
of
National
Revenue:
The
applicant
takes
exception
to
the
fact
that
other
taxpayers
who
engaged
in
commodity
trading
on
the
London
Metal
Exchange
through
VLR
were
not
assessed
for
interest
in
the
same
manner
[sic]
he
was.
However,
that
does
not
constitute
a
basis
for
overturning
the
impugned
decision.
Every
case
is
required
to
be
decided
on
its
own
merit
in
order
that
circumstances
unique
to
that
individual
taxpayer
are
properly
taken
into
account.
The
fact
the
respondent
exercised
its
discretion
in
a
different
manner
for
different
taxpayers
is
not
an
indication
of
bad
faith.
It
is
simply
reflective
of
the
fact
that
when
the
Minister
exercises
his
discretion
under
subsection
220(3.1),
he
is
required
to
take
into
account
considerations
relevant
and
unique
to
that
taxpayer
alone.
Indeed,
were
he
to
fail
to
exercise
his
discretionary
power
in
that
manner
and
simply
apply
the
same
rule
to
all
taxpayers
regardless
of
their
individual
circumstances,
he
would
be
fettering
the
discretion
bestowed
upon
him
by
the
legislation.^
Finally,
whether
the
Applicant’s
agent
has
been
late
on
previous
occasions
with
any
remittances
is
also
an
irrelevant
factor
in
determining
the
reasons
for
late
remittance.
It
is
the
Applicant’s
own
responsibility
to
ensure
that
its
remittance
is
received
before
the
deadline.
Therefore,
the
Court’s
intervention
is
not
warranted.
For
these
reasons,
the
application
for
judicial
review
is
dismissed.
Application
dismissed.