Brown v. Canada (Customs and Revenue Agency), 2007 FCA 26

Date: 20070130

Docket: A-655-05

Citation: 2007 FCA 26

CORAM:       DÉCARY J.A.

                        EVANS J.A.

                        MALONE J.A.

BETWEEN:

RODERICK EVAN BROWN

Appellant

and

CANADA CUSTOMS AND REVENUE AGENCY

Respondent

Heard at Toronto, Ontario, on January 30, 2007.

Judgment delivered from the Bench at Toronto, Ontario, on January 30, 2007.

REASONS FOR JUDGMENT OF THE COURT BY:                                                    EVANS J.A.

Date: 20070130

Docket: A-655-05

Citation: 2007 FCA 26

CORAM:       DÉCARY J.A.

                        EVANS J.A.

                        MALONE J.A.

BETWEEN:

RODERICK EVAN BROWN

Appellant

and

CANADA CUSTOMS AND REVENUE AGENCY

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto, Ontario, on January 30, 2007)

EVANS J.A.

[1]               This is an appeal from a decision of Justice Blais of the Federal Court dismissing an application for judicial review by Roderick Evan Brown to set aside a determination by a delegate of the Minister of National Revenue that Mr Brown had not made a voluntary disclosure of his failure to remit GST in the years 1996-2003 inclusive. The Minister may waive penalties owed by a  taxpayer who makes a voluntary disclosure under the “fairness program”.

[2]               The decision of Justice Blais is reported as Brown v. Canada (Canada Customs and Revenue Agency), 2005 FC 1639.

[3]               Before us, counsel for the appellant raised a new argument concerning the legality of the delegate’s decision which had not been raised before the delegate or Justice Blais, and was not in the memorandum of fact and law prepared for this appeal by the appellant himself. Counsel for the respondent objected on the ground that the argument had not been put to Justice Blais and had taken her by surprise.

[4]               In these circumstances, we are of the view that it would be inappropriate for the Court to consider the argument on its merits. Counsel relied on no other argument for allowing the appeal. The memorandum discloses no ground on which the appeal could succeed. 

[5]               For these reasons, the appeal will be dismissed with costs.

“John M. Evans”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          A-655-05

(APPEAL FROM AN ORDER OF THE HONOURABLE JUSTICE BLAIS, FEDERAL COURT DATED DECEMBER 2, 2005, DOCKET NO. T-151-05)

STYLE OF CAUSE:                          RODERICK EVAN BROWN v. CANADA CUSTOMS

AND REVENUE AGENCY

PLACE OF HEARING:                    TORONTO, ONTARIO

DATE OF HEARING:                      JANUARY 30, 2007

REASONS FOR JUDGMENT

OF THE COURT BY:                       (Décary, Evans & Malone JJ.A.)

DELIVERED FROM THE

BENCH BY:                                       Evans J.A.

APPEARANCES:

SOLICITORS OF RECORD: