Date: 20090416
Docket: A-55-09
Citation: 2009 FCA
112
CORAM: NOËL J.A.
RYER
J.A.
TRUDEL
J.A.
BETWEEN:
TONY
PAPA
Appellant
and
HER
MAJESTY THE QUEEN
Respondent
Dealt with in writing without appearance
of parties.
Order delivered at Ottawa, Ontario,
on April 16, 2009.
REASONS
FOR ORDER BY: NOËL
J.A.
CONCURRED
IN BY: RYER
J.A.
TRUDEL J.A.
Date: 20090416
Docket: A-55-09
Citation: 2009 FCA 112
CORAM: NOËL
J.A.
RYER J.A.
TRUDEL
J.A.
BETWEEN:
TONY PAPA
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
NOËL J.A.
[1]
The
appellant has filed a Notice of Appeal against an order of Teitelbaum J.
rendered pursuant to subsection 225.2(11) of the Income Tax Act, R.S.C.
1985, c. 1 (5th Supp.) (the Act) wherein he refused to vacate a
jeopardy order issued against the appellant. The appellant now brings an
application to stay the order of Teitelbaum J. pending the disposition of the
appeal.
[2]
The
respondent opposes this application and at the same time brings an application
to strike the Notice of Appeal on the ground that this Court is without
jurisdiction to hear it. Reliance is placed on subsection 225.2(13) of the Act
which provides:
|
(13) No appeal lies from an
order of a judge made pursuant to subsection 225.2(11).
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(13) L’ordonnance rendue par un
juge en application du paragraphe (11) est sans appel.
|
[3]
Subsection
225.2(11) and (8) provide in turn:
|
(8) Where a judge of a court
has granted an authorization under this section in respect of a taxpayer, the
taxpayer may, on 6 clear days notice to the Deputy Attorney General of Canada, apply to a judge of the
court to review the authorization.
|
(8) Dans le cas où le juge
saisi accorde l’autorisation visée au présent article à l’égard d’un
contribuable, celui-ci peut, après avis de six jours francs au sous-procureur
général du Canada, demander à un juge de la cour de réviser l’autorisation.
|
|
(11) On an application under
subsection 225.2(8), the judge shall determine the question summarily and may
confirm, set aside or vary the authorization and make such other order as the
judge considers appropriate.
|
(11) Dans le cas d’une requête
visée au paragraphe (8), le juge statue sur la question de façon sommaire et
peut confirmer, annuler ou modifier l’autorisation et rendre toute autre
ordonnance qu’il juge indiquée.
|
[4]
The
appellant resists the Motion to Strike on the ground that the proceeding before
Teitelbaum J. was not only based on subsection 225.2(8) of the Act, but also on
Rule 399 of the Federal Courts Rules, S.O.R./98-106. Rule 399 provides
that an ex parte order may be set aside if the party against whom the
order is made discloses a prima facie case why the order should not have
been made. Rule 399 and in particular decisions made thereunder were relied
upon in support of the argument that the order should be quashed because the
Crown had failed to make a frank and full disclosure to the Court in the
present matter.
[5]
It is apparent
from the decision of Teitelbaum J. that the application before him was brought
pursuant to subsection 225.2(8) of the Act and that his decision was rendered
pursuant to subsection 225.2(11) of the Act. A Court hearing an appeal pursuant
to that provision has the power to set aside a jeopardy order if the duty of
frank and full disclosure has not been met (Canada (Minister of National
Revenue – M.N.R.) v. Reddy, 2008 FC 208, [2008] F.C.J. No. 261 at para. 9).
The fact that Rule 399 and the jurisprudence developed under that Rule were
relied on does not transform the order into one rendered pursuant to Rule 399
(compare Ismail v. Canada (Minister of Citizenship and Immigration),
2006 FCA 396, [2006] F.J.C. No. 1835 at para. 4).
[6]
The
alternative argument that subsection 225.2(13) cannot apply because Teitlebaum
J. exceeded or refused to exercise his jurisdiction is also groundless. The
appellant has alleged in his Notice of Appeal that Teitlebaum J. made comments which
give rise to a reasonable apprehension of bias but his responding motion
material does not identify any such comment nor has the appellant seen fit to
order the transcript of the proceedings before Teitlebaum J. in order to
support this allegation.
[7]
I would
therefore strike the Notice of Appeal with costs in favour of the respondent.
Given this, the appellant’s Motion becomes moot and is accordingly dismissed,
also with costs.
“Marc
Noël”
“I
agree.
C. Michael Ryer
J.A.”
“I
agree.
Johanne Trudel J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-55-09
STYLE OF CAUSE: Tony
Papa v. Her Majesty the Queen
MOTION
DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: Noël J.A.
CONCURRED IN BY: Ryer J.A.
Trudel J.A.
DATED: April 16, 2009
WRITTEN
REPRESENTATIONS BY:
|
Aaron Rodgers
|
FOR
THE APPELLANT
|
|
Louis Sébastien
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Spiegel Sohmer
Montréal,
Quebec
|
FOR
THE APPELLANT
|
|
John H. Sims, c.r.
Deputy
Attorney General of Canada
|
FOR
THE RESPONDENT
|
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