Canada (Attorney General) v. Bruner, 2003 FCA 54

Date: 20030130

Docket: A-475-02

Neutral citation: 2003 FCA 54

CORAM:        STRAYER J.A.

SEXTON J.A.

PELLETIER J.A.

BETWEEN:

                                               THE ATTORNEY GENERAL OF CANADA

                                                                 Applicant

- and -

CALVIN D. BRUNER

Respondent

                                   Heard at Toronto, Ontario, on Thursday, January 30, 2003.

           Judgment delivered from the Bench at Toronto, Ontario, on Thursday, January 30, 2003.

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

                                                                                                                                             Date: 20030130

                                                                                                                                         Docket: A-475-02

                                                                                                                     Neutral citation: 2003 FCA 54

CORAM:        STRAYER J.A.

SEXTON J.A.

PELLETIER J.A.

BETWEEN:

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                         Applicant

- and -

CALVIN D. BRUNER

Respondent

                                       REASONS FOR JUDGMENT OF THE COURT

                                              (Delivered from the Bench at Toronto, Ontario

                                                         on Thursday, January 30, 2003.)

PELLETIER J.A.

[1]                 We are of the view that the judicial review must be allowed.

[2]                 While this Court has ruled that interlocutory appeals are not to be encouraged, there are cases where the interlocutory appeal may entirely dispose of the underlying appeal from the Notice of Assessment. This is such a case.

[3]                 The respondent is appealing from an assessment in which there is no amount in dispute, a fact which he admitted before Judge Miller and which was in evidence before Judge Bowie.    The provisions of the Income Tax Act relating to assessments and appeals are mirrored in the Excise Tax Act and we see no reason why the principles relating to appeals from nil assessments under the Income Tax Act should not apply to appeals under the Excise Tax Act providing that the principles extend to input tax credits and refunds as well as to liability for tax. Consequently, a taxpayer is not entitled to challenge an assessment where the success of the appeal would either make no difference to the taxpayer's liability for tax or entitlement to input tax credits or refunds, or would increase the taxpayer's liability for tax. When the respondent took the position that there was no amount in dispute, the Tax Court judge should have applied the nil assessment jurisprudence and quashed the Notice of Appeal.

[4]                 As for the argument that the objection is to the validity of the assessment, we refer to the dicta of Hugessen J. in the The Queen v. Consumer's Gas Company Limited [1987] 2 F.C. 50 (C.A.) that an appeal from an assessment is an appeal from the result of the assessment process and not from the process itself.

[5]                 Accordingly, we find that the judicial review should be allowed and the matter returned to the Tax Court judge with a direction that the Notice of Appeal is to be quashed.

[6]                 The applicant shall have its costs of the judicial review.

"J. D. Denis Pelletier"

                                                                                                                                                                  J.A.                          

FEDERAL COURT OF CANADA

APPEAL DIVISION

Names of Counsel and Solicitors of Record

DOCKET:                                              A-475-02

STYLE OF CAUSE:              THE ATTORNEY GENERAL OF CANADA

Applicant

- and -

CALVIN D. BRUNER

Respondent

DATE OF HEARING:                        THURSDAY, JANUARY 30, 2003

PLACE OF HEARING:                      TORONTO, ONTARIO

REASONS FOR JUDGMENT

OF THE COURT BY:                         PELLETIER J.A.                      

DATED:                                                 THURSDAY, JANUARY 30, 2003

JUDGMENT DELIVERED FROM THE BENCH ON THURSDAY, JANUARY 30, 2003.

APPEARANCES BY:                          Mr. John Shipley

For the Applicant

Mr. Calvin D. Bruner

For the Respondent, on his own behalf

SOLICITORS OF RECORD:           Morris Rosenberg

Deputy Attorney General of Canada

For the Applicant

Calvin D. Bruner

Toronto, Ontario

For the Respondent, on his own behalf