Date: 20110606
Docket: A-490-10
Citation: 2011 FCA 191
CORAM: NADON
J.A.
EVANS
J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
WAYCOBAH FIRST NATION
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
Introduction
[1]
This is an
appeal by the Waycobah First Nation (Waycobah) from a decision of the Federal
Court (2010 FC 1188), in which Justice de Montigny (Judge) dismissed Waycobah’s
application for judicial review to set aside a decision by Brian McCauley,
Assistant Commissioner of the Legislative Policy and Regulatory Affairs Branch,
Canada Revenue Agency (CRA). In that decision, contained in a letter dated
November 9, 2009, the Assistant Commissioner declined to recommend the
remission of Waycobah’s substantial tax debt.
[2]
The debt arose
from Waycobah’s failure to collect harmonized sales tax (HST) from non-natives
who bought gasoline and tobacco from a gas station on the reserve. Two
individuals had purchased the business in 2000 in trust for Waycobah which,
like the previous owner, took the view that its trading activities were exempt
from taxation under an eighteenth century treaty with the Crown. This view was apparently
widely held by First Nations in Nova Scotia, but was not shared by either the
federal government or, as it transpired, the courts. After losing an appeal on
the issue in the Tax Court of Canada in 2000, Waycobah recognized that it had
lost the judicial battle when, in June 2003, the Supreme Court of Canada
refused leave to appeal a decision of this Court upholding the decision of the
Tax Court. Waycobah started to collect HST on taxable sales to non-natives from
June 2003.
[3]
Because
Waycobah had not previously collected HST to guard against the possibility that
the courts might reject its claim to an exemption, it had accumulated a tax
debt of over $1.3 million (including penalties and interest) by the time that
it was assessed for the period April 1, 2000 to December 31, 2001. Following
further audits of the gas station business, assessments of the amount outstanding
were made for subsequent years, ending in March 31, 2005.
[4]
Negotiations
on repayment took place between Waycobah and CRA officials over several years,
starting in 2002. As a result, Waycobah agreed to a repayment schedule, and the
CRA waived a substantial amount owing for penalties and interest. However,
Waycobah did not comply with the repayment agreement and HST collection
problems persisted until 2005. By September 2009 the debt exceeded $3.4
million.
[5]
Waycobah
is an impoverished small community: its basic infrastructure (schools, housing,
water, and sewers) needs to be replaced and its capacity expanded. The First
Nation’s financial situation is precarious: it has a significant budget deficit
and, at the instance of the Department of Indian Affairs and Northern
Development, has operated under a co-management agreement since 2001. The
deficit, comprising largely the tax debt, has substantially impeded its ability
to borrow funds to make good its infrastructure deficiencies.
Decision of the CRA
[6]
The
Assistant Commissioner made the decision under review in these proceedings as
the delegate of the Minister of National Revenue. He exercised the power under
subsection 23(2) of the Financial Administration Act, R.S.C. 1985, c.
F-11 (Act), which provides as follows:
|
23(2) The Governor in Council may, on
the recommendation of the appropriate Minister, remit any tax or penalty,
including any interest paid or payable thereon, where the Governor in Council
considers that the collection of the tax or the enforcement of the penalty is
unreasonable or unjust or that it is otherwise in the public interest to
remit the tax or penalty.
|
23(2) Sur recommandation du ministre
compétent, le gouverneur en conseil peut faire remise de toutes taxes ou
pénalités, ainsi que des intérêts afférents, s’il estime que leur perception
ou leur exécution forcée est déraisonnable ou injuste ou que, d’une façon
générale, l’intérêt public justifie la remise.
|
[7]
While
recognizing Waycobah’s extreme financial difficulties, the Assistant Commissioner
also noted the First Nation’s history of non-compliance with its tax
obligations, despite repeated warnings from CRA officials. He concluded:
As a result of the foregoing, the facts
of this case do not conform to the CRA’s
remission guidelines to warrant granting
relief.
Decision of the Federal Court
[8]
Waycobah
challenged the Assistant Commissioner’s decision in the Federal Court on
essentially two grounds.
[9]
First, the
decision letter indicates that he unlawfully constrained the exercise of his
discretion under subsection 23(2) of the Act by basing the decision solely on
the criteria contained in the CRA Remission Guide (guidelines), without
reference to the broader statutory criteria of whether collection of the tax or
enforcement of the penalties would be “unreasonable or unjust”, or if it would
otherwise be in the “public interest” to remit the tax or penalty. In
particular, counsel argued, the Assistant Commissioner did not consider the
request for remission in light of the government policy of encouraging First
Nations’ self-governance.
[10]
Second, by
failing to read Waycobah’s representations in support of its request and
relying, instead, on officials’ summaries of them, the Assistant Commissioner
breached a principle of the duty fairness: those who decide must also hear.
[11]
In
careful and comprehensive reasons, the Judge upheld the Assistant
Commissioner’s decision and concluded that Waycobah had not demonstrated that
the decision was erroneous on either of the grounds on which it relied. I agree
with the Judge’s conclusion. For the reasons given by the Judge, and those that
follow, I would dismiss the appeal.
Analysis
(a) standard of review
[12]
Reasonableness
is the standard of review applicable to the judicial review of the Assistant
Commissioner’s discretionary decision: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 at para. 53 (Dunsmuir). I agree with counsel for Waycobah that the
Court may set aside as unreasonable an exercise of discretion if the
decision-maker has unduly constrained the exercise of discretion by refusing to
take into account a statutorily relevant factor because it was not included in
administrative guidelines.
[13]
A standard
of review analysis is not required for the allegation of procedural
impropriety. The only question is whether, in all the circumstances, the
decision-making procedure was fair.
(b) unreasonableness of
outcome
[14]
Counsel’s
principal argument on appeal was that the Assistant Commissioner’s refusal to
recommend remission was unreasonable because the decision did not fall “within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir at para. 47.
[15]
In
particular, he said, the guidelines require the decision-maker to attach great
weight to the “extreme financial hardship” that the taxpayer would sustain if
required to pay the tax. In contrast, they deal only briefly with taxpayer
non-compliance as a basis for refusing to recommend remission, an indication,
counsel argued, that it was intended to be given little weight. He said that
the Assistant Commissioner’s refusal to recommend remission was flawed because
it undervalued Waycobah’s financial hardship and exaggerated its degree of
non-compliance.
[16]
Counsel
for Waycobah relied on Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 at para. 72, where Justice L’Heureux-Dubé
said that the fact that the decision under review in that case was contrary to
the applicable guidelines was “of great help in assessing whether the decision
was an unreasonable exercise” of the statutory power in question. Thus, partly
on the basis of the guidelines, she concluded that the immigration officer’s
rejection of an application to remain in Canada on humanitarian and
compassionate grounds was unreasonable, because the officer had not given
serious consideration to the best interests of the applicant’s Canadian-born
children.
[17]
I do not
agree with the inference that counsel asks us to draw from the guidelines in
the present case, namely that, once an applicant has demonstrated extreme
financial hardship, remission will normally be granted. In my opinion, the
amount of space that the guidelines devote to hardship is not indicative of the
weight that it is to be given by the decision-maker. Equally significant, in my
view, is the fact that the guidelines specifically state that remission will
likely not be recommended if non-compliance is the result of negligence or
carelessness, or an imprudent decision by the taxpayer, as was found to be the
case here.
[18]
Nor does
the language of subsection 23(2) itself (“unreasonable or unjust” or
“otherwise in the public interest”) indicate that Parliament intended that a
debt should normally be remitted if payment would cause extreme hardship. These
are open-ended terms that enable the Minister to take into account the wider
impact of recommending remission, including, for example, the public interest
in the integrity of the tax system and its proper administration, and fairness
to other taxpayers. The decision-maker must balance the competing interests to
determine whether, in light of the particular facts, collection of the tax
would be unreasonable, unjust or otherwise not in the public interest.
[19]
In the
absence of any clear indication in either the guidelines or subsection 23(2)
itself that the Minister must give almost decisive weight to extreme financial
hardship, counsel’s argument comes down to an invitation to the Court to
reweigh the factors taken into account by the Assistant Commissioner in the exercise
of the discretion. This is an invitation that courts must normally refuse: see Chogolzadeh
v. Canada (Minister of Public Safety
and Emergency Preparedness),
2008 FC 405, 327 F.T.R. 39 at paras. 36-40 (per Shore J.),
particularly where, as here, the discretion is conferred in broad, policy-based
terms, and is exercisable by a Minister or a delegate of the Minister within a
decision-making context that may result in the grant of extraordinary relief by
the Governor in Council.
[20]
In these
circumstances, it is no easy task for a litigant to satisfy a reviewing court
that the outcome of the exercise of discretion is unreasonable. In my view,
Waycobah has not succeeded in so doing.
(c) fettering discretion
[21]
In the
alternative, counsel argues that the Assistant Commissioner treated the
guidelines as exhaustive and did not take into account other factors on which
Waycobah based its request for remission and which are relevant to the
application of the statutory criteria governing the exercise of the Minister’s
discretion. In particular, the Assistant Commissioner did not refer to Waycobah’s
submission that, unless its tax debt was remitted, it could not move towards
self-governance in accordance with government policy.
[22]
I do not
agree. Like the Judge, I do not read the Assistant Commissioner’s decision as
precluding consideration of factors because they are not mentioned in the
guidelines, which expressly state that they are not exhaustive. Indeed, the
decision letter sets out Waycobah’s submission that remission would afford it
“the opportunity for self-governance and financial independence.” While he does
not specifically mention this factor again, the Assistant Commissioner had it
in mind, and there is no evidence that he subsequently excluded it from consideration.
In my view, his acknowledgement of the financial hardship that Waycobah was
experiencing can be taken to include its consequences, including the adverse
impact on the First Nation’s ability to replace inadequate infrastructure
(along with the attendant health and other social problems), and to achieve
financial independence and self-governance.
[23]
Nor do I
accept that the Assistant Commissioner’s decision letter treated non-compliance
as a virtual bar to a positive recommendation, without regard to other
considerations. It is evident that he viewed Waycobah’s history of
non-compliance as extensive and gave it decisive weight “in the circumstances”
before him, all of which were more fully set out in the reports prepared by CRA
officials to assist him in making the decision.
[24]
I agree
that the Assistant Commissioner may have given the impression that he regarded
the guidelines as binding and determinative when, after dealing with
non-compliance, he ended his letter by saying:
As a result of the foregoing, the facts
of this case do not conform to the
CRA’s remission guidelines to warrant
granting relief.
Counsel also pointed out that this was not an isolated
example. Similar language is found in the two principal documents that the
Assistant Commissioner had before him when he made his decision: a report from
Karen Stirling of the Excise and GST/HST Rulings Directorate, dated June 25, 2009,
summarizing the file and recommending against remission, and the minutes of the
meeting of the Headquarters Remission Committee on September 2, 2009, recording
its recommendation against remission.
[25]
These
documents may suggest a departmental “mind set” that remission can only be
granted if the request complies with the guidelines, something that has already
drawn negative judicial comments in respect of officials’ use of similar
guidelines on the waiver of penalties and interest: see Robertson v. Canada
(Minister of National Revenue), 2003 FCT 16, 2003 D.T.C. 5068 at para. 12; McNaught
Pontiac Buick Cadillac Ltd. v. Canada (Customs and Revenue Agency), 2006 FC 1296, 302 F.T.R. 117 at para.
10.
[26]
Counsel
for the Minister conceded that the use of language that gives the impression
that a remission request cannot be granted because it does not comply with the
guidelines is “unfortunate”. Nonetheless, she argued that, when the documents
are read as a whole, it is clear that neither the Assistant Commissioner, nor
the authors of the other documents on which he relied, excluded considerations
because they were not in the guidelines, or treated non-compliance as an
automatic bar to a recommendation of remission.
[27]
I agree
with this submission. The Assistant Commissioner’s letter and the supporting
documents set out details of the financial hardships of Waycobah, and explain the
serious consequences that they may have for the First Nation, including their
effect on Waycobah’s ability to achieve financial independence, on its
property, and on the environment. While Waycobah’s history of non-compliance
was regarded as fatal to its request for remission, I am persuaded that the
decision was made in light of the particular facts of this case, and was not
improperly pre-determined by a rigid approach to the guidelines, without regard
to the totality of the facts and the width of the statutory discretion
conferred by subsection 23(2).
[28]
It is not
unlawful for an administrative decision-maker to base a decision on valid,
non-exhaustive guidelines, formulated as a decision-making framework to promote
principled consistency in the exercise of a discretion. However, the decision-maker
cannot treat guidelines as if they were law, and exhaustive of the factors that
may be considered in the exercise of a broader statutory discretion. In my
opinion, this is not what the Assistant Commissioner did.
[29]
Incidentally,
I note that the cover page of the guidelines relevant to the present case is
marked “For CRA use only”. It is, in my view, unfortunate if this means that
they are not made available to the public. Applicants for remission, as well as
the wider public, ought to have access to the bases on which discretion
conferred by subsection 23(2) is exercised.
(d) procedural unfairness
[30]
The Act
prescribes no procedures for dealing with requests for tax debt remission. This
is left to the discretion of the Minister. Nonetheless, counsel for Waycobah
argued that the duty of fairness applies, and that it requires the Minister, or
his or her delegate, to personally examine the representations made by
applicants before deciding whether to recommend remission. He based this
proposition on the principle of the duty of fairness that those who decide must
also hear.
[31]
However, to
my knowledge, and counsel could point to no authority to the contrary, the duty
of fairness has never required a Minister, or a senior departmental official, personally
to do all the preparatory work before making an administrative decision,
including summarizing any representations made by those liable to be affected
by the decision.
[32]
The
content of the duty of fairness is flexible and takes into account the nature
of the decision in question, and the administrative and institutional contexts
in which it is made. On the present facts, the duty will have been discharged if
the Assistant Commissioner had available to him a summary of Waycobah’s
representations that was sufficiently accurate and complete to enable him to
make an independent decision. From Waycobah’s perspective this may not be as
satisfactory as an opportunity to “speak” directly to the decision-maker, albeit
in writing. However, the duty of fairness affords individuals an adequate, not
the optimum, opportunity to inform the decision-maker of their case.
[33]
I agree that
the summaries of the file prepared for the Assistant Commissioner were not
perfect. For example, they did not mention the threat to health posed by the
overloaded sewerage system that had been identified in a consultant’s report
that Waycobah had sent to the CRA in support of its request. Nonetheless,
despite some shortcomings, I am satisfied that the summaries provided a
substantially accurate and complete account of the principal bases of
Waycobah’s request for remission. The First Nation was thus afforded a
reasonable opportunity to be heard by the decision-maker, who was able to make
an independent decision that was informed by Waycobah’s representations. There
was, in my opinion, no breach of the duty of fairness.
Conclusions
[34]
For these
reasons, I would dismiss the appeal but, in all the circumstances, without
costs.
“John
M. Evans”
“I
agree
M.
Nadon J.A.”
“I
agree
Carolyn
Layden-Stevenson J.A.”
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