Tremblay-Côté v. Canada, docket T-211-95

     Date: 19990421

     Docket: T-211-95

MONTRÉAL, QUEBEC, APRIL 21, 1999

BEFORE: RICHARD MORNEAU, PROTHONOTARY

Between:

     LIETTE TREMBLAY-CÔTÉ,

     Plaintiff,

     AND

     HER MAJESTY THE QUEEN,

     Defendant.

     REASONS FOR ORDER AND ORDER

RICHARD MORNEAU, PROTHONOTARY

[1]      By her motion the defendant is asking the Court to dismiss the plaintiff's statement of claim on the ground that this Court does not have jurisdiction to decide the matter.

[2]      By her action the plaintiff is appealing a decision by the Tax Court of Canada on December 12, 1994. By that decision the Tax Court of Canada dismissed the plaintiff's appeal for the 1986 taxation year.

[3]      It is clearly the 1986 taxation year that the plaintiff is appealing to this Court. This appears from the latter's statement of claim and the oral and written submissions made by her at the hearing of the subject motion.

[4]      I think it is fair to say that under the powers conferred upon it by the Income Tax Act, as it read at the relevant periods, this Court has no jurisdiction to rule on the plaintiff's action regarding her 1986 taxation year since the plaintiff is not disputing the 1986 assessment as such (the one dated June 19, 1987), but the fact that the Minister of National Revenue recovered a balance owed for an earlier taxation year (that is, 1985) from the refund determined for the 1986 taxation year (see James McGowan v. Minister of National Revenue, 62 D.T.C. 492).

[5]      The plaintiff's real problem concerned her 1985 taxation year, as the result of a notice of reassessment for 1985 issued on March 31, 1987. Although she received a statement of account dated May 18, 1987, referring to a recent notice of assessment (quite possibly the notice of March 31, 1987), the plaintiff maintains that she never received the notice of March 31, 1987. The first time she heard of this notice was in 1989. She was therefore unable to file a notice of objection for 1985 in time. According to the statement of the law submitted by the defendant, it will suffice to determine that the notice of March 31, 1987 was sent on that date, regardless of the fact that it was not received or was not received on time. This appears to be the state of the law. The fact that the notice of assessment of June 19, 1987 dealing with the 1986 taxation year " and received by the plaintiff " contains an accounting calculation to make an offset for the amount owed for 1985 will not suffice to establish that it constitutes a notice of assessment for 1985.

[6]      In practical terms, however, the Court sees some relief for the plaintiff in the fact that a notice of reassessment was issued to her on February 12, 1999. This notice contains a credit in the plaintiff's favour and, one may think, largely corrects the situation objected to by the plaintiff as a result of the notice of March 31, 1987.

[7]      Accordingly, the defendant's motion should be allowed. However, I consider that no costs should be awarded to the defendant on this motion since, among other things, it could have been brought much earlier.

Certified true translation

Bernard Olivier, LL. B.

     FEDERAL COURT OF CANADA

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE No:      T-211-95

     Plaintiff,

             AND

             HER MAJESTY THE QUEEN,

     Defendant.

PLACE OF HEARING:      Montréal, Quebec

DATE OF HEARING:      April 19, 1999

REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY

DATE OF REASONS FOR ORDER:      April 21, 1999

APPEARANCES:

Liette Tremblay-Côté      for the plaintiff

Michel Lamarre      for the defendant

SOLICITORS OF RECORD:

Morris A. Rosenberg      for the defendant

Deputy Attorney General of Canada