Date:
20130626
Dockets: A-303-12
A-304-12
Citation:
2013 FCA 173
CORAM: SHARLOW
J.A.
DAWSON J.A.
STRATAS
J.A.
A-303-12
BETWEEN:
A&E
PRECISION FABRICATING AND MACHINE SHOP INC.
Appellant
and
HER
MAJESTY THE QUEEN
Respondent
AND
A-304-12
BETWEEN:
CENTRAL
SPRINGS LIMITED
Appellant
and
HER
MAJESTY THE QUEEN
Respondent
Heard
at St. John’s, Newfoundland and Labrador, on June 26, 2013.
Judgment
delivered from the Bench at St. John’s, Newfoundland and Labrador, on June 26, 2013.
REASONS FOR JUDGMENT OF THE COURT
BY: DAWSON J.A.
Date:
20130626
Dockets: A-303-12
A-304-12
Citation:
2013 FCA 173
CORAM: SHARLOW
J.A.
DAWSON J.A.
STRATAS
J.A.
A-303-12
BETWEEN:
A&E
PRECISION FABRICATING AND MACHINE SHOP INC.
Appellant
and
HER
MAJESTY THE QUEEN
Respondent
AND
A-304-12
BETWEEN:
CENTRAL
SPRINGS LIMITED
Appellant
and
HER
MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
OF THE COURT
(Delivered
from the Bench at St. John's, Newfoundland and Labrador, on June 26, 2013)
DAWSON J.A.
[1]
These
are appeals from two judgments of the Tax Court of Canada. For reasons
delivered orally the Court dismissed the appellants’ appeals from two
certificates issued by a taxing officer (2012 TCC 260). These reasons deal with
both appeals, and a copy of these reasons shall be placed on each court file.
[2]
The
facts necessary to understand the issues raised on these appeals may be briefly
stated:
1. The
appellants appealed to the Tax Court from assessments made under the Income
Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (Act) in respect of their 2001, 2002
and 2003 taxation years.
2. The
appeals were heard on common evidence by Justice Boyle of the Tax Court. For
reasons cited as 2010 TCC 543, Justice Boyle issued amended judgments allowing
the appeals and ordering the respondent to reconsider and reassess in
accordance with the reasons for judgment. Costs were to be dealt with
separately.
3. Justice
Boyle issued an order on costs in which he allowed costs to the appellants to
be computed in accordance with the Tax Court’s “Informal Rules 10 through 11”,
together with all reasonable disbursements.
4. A
taxing officer issued a taxing certificate in the amount of $16,145.50 in respect
of both appeals.
5. The
appellants appealed from the taxation of costs.
6. In the
judgments under appeal, Justice Campbell of the Tax Court dismissed without
costs the appeals brought by the appellants.
[3]
On
these appeals the appellants argue that Justice Campbell erred by:
1. Failing
to correct the taxation officer’s error in applying Rule 12 and Rule 12(1.1) of
the Tax Court of Canada Rules (Informal Procedure) to the assessments.
Justice Boyle is said to have been express that only Rules 10 and 11 were to be
considered by the taxation officer.
2. Failing
to order the respondent to pay the costs as taxed.
[4]
If
successful, the appellants seeks their costs here and below.
[5]
For
the following reasons, we have not been persuaded that Justice Campbell erred
as alleged.
[6]
To
turn first to the taxation officer’s reliance on Rule 12 and Rule 12(1.1), the
officer limited the witness fees payable in respect of the appellants’ witness
Mr. Farrell because he did not testify as an expert witness and did not allow
witness fees in respect of the appellants’ witness Mr. Humby who attended as
a director of the appellants. Rule 12 limits the fees to be paid to non-expert
witnesses. Mr. Farrell did not testify as an expert. Rule 12(1.1) permits
witness fees to be paid in respect of an appellant’s witness only if the
witness was called to testify by the respondent, which Mr. Humby was not. In
Justice Campbell’s view, the taxation officer did not err in principle by
relying upon Rule 12 and Rule 12(1.1), even if not specifically referenced by
Justice Boyle, because the existence of the rules could not be ignored.
[7]
We
agree. In the absence of an order by Justice Boyle specifically ousting the
application of Rule 12 or Rule 12(1.1), the taxation officer made no error in
principle by relying upon them.
[8]
Next,
the Judge found that the respondent had set off its obligation to pay the taxed
costs against the appellants’ tax debts, and that the Tax Court had no
jurisdiction to review such set off.
[9]
We
agree that the Tax Court had no jurisdiction to review the respondent’s set
off. In the present cases, the jurisdiction of the Tax Court was limited to
hearing and determining the appeals brought under the Act (subsection 12(1) of
the Tax Court of Canada Act, R.S.C. 1985, c. T-2). This does not include
the power to review collection procedures employed by the respondent. Jurisdiction
with respect to collection procedures lies with the Federal Court.
[10]
For
these reasons, these appeals will be dismissed with one set of costs.
Therefore, the judgment in A-303-12 will state that the appeal is dismissed
with costs, and judgment in A-304-12 will state that the appeal is dismissed
without costs.
“Eleanor R. Dawson”
FEDERAL COURT OF
APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKETS: A-303-12
STYLE OF CAUSE: A&E PRECISION
FABRICATING AND MACHINE SHOP INC. v. HMTQ
PLACE OF HEARING: St. John’s, Newfoundland and
Labrador
DATE OF HEARING: June
26, 2013
REASONS FOR JUDGMENT
OF THE COURT BY: (SHARLOW,
DAWSON, STRATAS JJ.A.)
DELIVERED FROM THE
BENCH BY: DAWSON J.A.
APPEARANCES:
|
Robert
B. Anstey
|
FOR
THE APPELLANTS
|
|
Jill
Chisholm
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Robert
B. Anstey
St.
John’s,
Newfoundland and
Labrador
|
FOR THE APPELLANTS
|
|
William
F. Pentney
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
FEDERAL COURT OF
APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKETS: A-304-12
STYLE OF CAUSE: CENTRAL SPRINGS
LIMITED v. HMTQ
PLACE OF HEARING: St. John’s, Newfoundland and
Labrador
DATE OF HEARING: June
26, 2013
REASONS FOR JUDGMENT
OF THE COURT BY: (SHARLOW,
DAWSON, STRATAS JJ.A.)
DELIVERED FROM THE
BENCH BY: DAWSON J.A.
APPEARANCES:
|
Robert
B. Anstey
|
FOR
THE APPELLANTS
|
|
Jill
Chisholm
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Robert
B. Anstey
St.
John’s,
Newfoundland and
Labrador
|
FOR THE APPELLANTS
|
|
William
F. Pentney
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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