[1] Don and Linda Getson (the "applicants") launched this judicial review application to set aside the July 5, 2000 decision of G. C. Yorke, Assistant Director, Revenue Collections, Canada Customs and Revenue Agency ("CCRA"), in Edmonton who, at the final level, refused their request, under subsection 220(3.1) of the Income Tax Act (the "Act") for a waiver of interest otherwise payable.
[2] On July 2, 1999, Don and Linda Getson were reassessed for a second time in respect of their 1995 and 1996 income tax years.
[3] For those two years, Don Getson was reassessed the amount of $6,519.06 in taxes and $3,365.61 in arrears interest.
[4] Linda Getson was reassessed a principal amount of $4,136.00 and arrears interest of $1,062.00.
[5] After receiving the reassessments, Mr. & Mrs. Getson applied, on August 4, 1999, for interest relief due to unanticipated financial hardship.
[6] Mr. & Mrs. Getson were denied relief at the first level in a January 26, 2000 decision made by Fairness Team Coordinator H. van Loo. He wrote (page 101 of the respondent's record):
Undue hardship for an individual person means causing the person unnecessary or oppressive suffering or privation, that is, not being able to meet basic family needs. It is apparent from the information that you provided, that you could rearrange your financial obligations in order to liquidate the debt in full.
[7] When Mr. Yorke made the second level and final decision, Linda Getson's unpaid tax account balance was nil because the CCRA applied her 1998 and 1999 refunds to liquidate her tax and interest arrears debt. Mr. Yorke advised Mrs. Getson, in the circumstances, "relief would not be appropriate in this case".
[8] In terms of Don Getson, Mr. Yorke wrote this (respondent's record, page 45):
A review of your financial situation, however, indicates that you are in a position to pay your income tax arrears without inhibiting your ability to meet your other financial obligations. When making this determination, I considered income from all sources, including Worker's Compensation Benefits which [you] received, as well as pension income. Therefore I regret to inform you that relief from interest will not be granted as you are not experiencing hardship as defined in the Fairness Legislation.
B. ANALYSIS
[9] Inability to pay amounts owing is a circumstance recognized in the Guidelines for the cancellation and waiver of interest and penalties issued by the CCRA (previously Revenue Canada) under Information Circular 92-2.
[10] In Her Majesty the Queen v. Barbara L. Barron et al. (1997), 97 D.T.C. 5121 (F.C.A.), Pratte J.A. stated the applicable principles governing the review of the exercise of discretionary powers when he was dealing with an analogous provision of the Act concerned with the reopening of statute-barred taxation years; I consider these principles as applicable to the exercise of ministerial power under subsection 220(3.1) of the Act. Justice Pratte said this at page 5122:
. . . it may be useful to recall that subsection 152(4.2) of the Income Tax Act confers a discretion on the Minister and that, when an application for judicial review is directed against a decision made in the exercise of a discretion, the reviewing court is not called upon to exercise the discretion conferred on the person who made the decision. The court may intervene and set aside the discretionary decision under review only if that decision was made in bad faith, if its author clearly ignored some relevant facts or took into consideration irrelevant facts or if the decision is contrary to law. [emphasis mine]
[11] In this case, the decision-maker examined Mr. & Mrs. Getson's average family income between 1995 and 1999 stating it to be $51,578 recognizing, however, that for them, 1998 was a poor year with total family income of $23,469. The decision-maker noted Mr. Getson, in 1999, received a Workers' Compensation Board payment of some $30,000 which was not taxable bringing his total net income for that year to $41,537. The applicants explained to me that this W.C.B. payment was a lump sum payment of a non-recurring nature. The decision-maker also noted Mrs. Getson's contributions to an R.R.S.P. between 1995 through 1999 including a contribution of $5,516 in 1999.
[12] The applicants have not been able to identify any material error in the information considered or generated by the decision-maker who clearly focussed his mind on the relevant question -- the applicants' inability to pay.
[13] The Court cannot substitute its decision for that made by the responsible official at CCRA. It can only intervene if a reviewable error has been established. The applicants have failed to identify any reviewable error.
C. DISPOSITION
[14] This judicial review application is dismissed.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
MAY 30, 2001
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