Jerome
A.CJ.:
Reasons
for
Order
This
motion
by
the
plaintiff
for
summary
judgment
came
on
for
hearing
at
Toronto,
Ontario,
on
October
22,
1996.
At
the
conclusion
of
argument,
I
took
the
matter
under
reserve
and
indicated
that
written
reasons
would
follow.
Background
The
plaintiff
is
a
manufacturer
of
motor
vehicles
and
is
licensed
under
the
Excise
Tax
Act,
R.S.C.
1985,
c.
E-15,
as
amended
by
sales
tax
licence
82797637.
Mr.
Norm
Forget,
an
auditor
with
Revenue
Canada,
audited
the
plaintiff
in
1988
for
the
period
December
31,
1984
to
July
31,
1988.
During
the
course
of
the
audit,
Mr.
Brian
Reddy,
the
plaintiff’s
Manager
of
Corporate
Finance
and
Taxation,
signed
a
waiver
on
July
20,
1988
which
stated:
the
statutory
time
limit
referred
to
in
Part
VI
of
the
Excise
Tax
Act,
within
which
the
Minister
may
assess
tax,
penalty,
interest
or
other
sum
is
hereby
waived
for
the
period:
December
31,
1984
to
June
30,
1985
in
respect
of
the
matter(s):
All
matters
which
may
be
assessed
under
the
Excise
Tax
Act.
Mr.
Kwame
Agyemang,
a
Revenue
Canada
auditor,
conducted
an
audit
of
the
plaintiff
from
May,
1989
to
December,
1990,
which
covered
the
period
January
1,
1985
to
May
31,
1989.
On
September
18,
1989,
Mr.
Reddy,
as
National
Manager
of
Finance
and
Taxation,
signed
a
second
waiver
which
was
identical
to
the
first
waiver
except
that
it
covered
the
period
December
31,
1984
to
May
31,
1989.
On
January
9,
1991,
Revenue
Canada
issued
two
Notices
of
Assessment
which
were
identified
as
E
TOR
600
and
E
TOR
601.
E
TOR
600
covered
the
period
July
1,
1986
to
July
31,
1986
and
E
TOR
601
covered
the
period
January
1,
1985
to
May
31,
1989.
The
plaintiff
disputes
the
Notices
of
Assessment
on
the
basis
that
they
are
based
upon
invalid
waivers.
Analysis
Section
81.11
of
the
Excise
Tax
Act,
R.S.C.
1985,
c.
E-15,
as
amended
states:
(1)
No
assessment
shall
be
made
for
any
penalty
or
fine
imposed
pursuant
to
a
conviction
for
an
offence
under
this
Act.
(2)
Subject
to
subsections
(3)
to
(5),
no
assessment
shall
be
made
for
any
tax,
penalty,
interest
or
other
sum
more
than
four
years
after
the
tax,
penalty,
interest
or
sum
became
payable
under
this
Acct.
(3)
A
variation
of
an
assessment,
or
a
reassessment,
may
be
made
at
any
time
pursuant
to
subsection
81.15(4)
or
81.38(1).
(4)
An
assessment
in
respect
of
any
matter
may
be
made
at
any
time
where
the
person
to
be
assessed
has,
in
respect
of
that
matter,
(a)
made
a
misrepresentation
that
is
attributable
to
his
neglect,
carelessness
or
wilful
default;
or
(b)
committed
fraud
in
filing
or
making
or
failing
to
file
or
make
a
return,
or
in
supplying
or
failing
to
supply
any
information,
under
this
Act.
(5)
An
assessment
in
respect
of
any
matter
specified
in
a
waiver
filed
pursuant
to
subsection
(6)
may
be
made
at
any
time
within
the
period
specified
in
the
waiver
or,
if
a
notice
of
revocation
of
the
waiver
has
been
filed
pursuant
to
subsection
(7),
within
the
period
commencing
on
the
day
on
which
the
period
specified
in
the
waiver
commences
and
ending
six
months
after
the
day
on
which
the
notice
is
filed.
(6)
Any
person
may,
within
the
time
otherwise
limited
by
subsection
(2)
for
assessing
that
person,
waive
the
application
of
that
subsection
to
him
by
filing
with
the
Minister
a
waiver
in
the
prescribed
form
specifying
the
period
for
which,
and
the
matter
in
respect
of
which,
the
person
waives
the
application
of
that
subsection.
(7)
Any
person
who
has
filed
a
waiver
pursuant
to
subsection
(6)
may
revoke
the
waiver
on
six
months
notice
to
the
Minister
by
filing
with
the
Minister
a
notice
of
revocation
of
the
waiver
in
the
prescribed
form.
Thus,
absent
fraud
or
misrepresentation,
Revenue
Canada
is
precluded
from
issuing
a
Notice
of
Assessment
covering
a
period
beyond
the
four
year
statutory
limitation
period.
However,
the
taxpayer
may
file
a
waiver
of
the
statutory
limitation
period.
The
focus
of
the
argument
before
me
was
upon
the
validity
of
the
waivers
signed
by
Mr.
Reddy
on
behalf
of
the
plaintiff.
The
plaintiff
submits
that
three
requirements
must
be
proven
by
the
defendant
before
it
can
rely
upon
a
waiver:
1.
the
waiver
must
specify
the
period
of
time
the
Minister
will
have
to
issue
the
assessment,
and
it
must
specify
the
matters
in
respect
of
which
it
is
filed;
2.
the
waiver
must
be
completed
and
executed
prior
to
the
expiration
of
the
four
year
limitation
period;
3.
the
Notice
of
Assessment
must
be
issued
not
later
than
the
last
day
of
the
period
specified
in
the
waiver;
and,
The
plaintiff
also
contends
that
the
failure
of
any
one
of
these
three
conditions
is
fatal
to
the
validity
of
the
waiver
and
that
in
this
case
there
has
been
failure
to
meet
not
just
one
but
all
three
conditions.
The
defendant
submits
that
the
waivers
signed
by
Mr.
Reddy
are
valid
and
enforceable,
and,
in
turn,
that
the
Notices
of
Assessment
are
valid,
with
the
exception
of
the
amounts
assessed
for
the
period
July
1,
1985
through
September
17,
1985
which
were
statute-barred
at
the
signing
of
the
second
waiver
on
September
18,
1989.
In
addition,
the
defendant
submits
that
the
validity
of
the
waiver
must
be
determined
in
the
context
of
the
circumstances
and
events
surrounding
its
execution
by
Mr.
Reddy
and
with
regard
to
the
intentions
of
the
parties.
The
defendant
states
that
these
are
issues
best
dealt
with
at
trial.
The
Federal
Court
Rules
relevant
to
this
motion
are
as
follows:
432.1(1)
A
plaintiff
may,
after
the
defendant
has
filed
a
defence
or
earlier
with
leave
of
the
Court,
and
at
any
time
prior
to
the
fixing
of
the
time
and
date
for
trial,
make
a
motion
to
a
judge,
with
supporting
affidavit
material
or
other
evidence,
for
summary
judgment
on
all
or
part
of
the
claim
in
the
statement
of
claim.
432.3(1)
Where
a
judge
is
satisfied
that
there
is
no
genuine
issue
for
trial
with
respect
to
a
claim
or
defence,
the
judge
shall
grant
summary
judgment
accordingly.
The
purpose
of
these
provisions
is
to
allow
the
court
to
summarily
dispense
with
those
cases
which
it
considers
ought
not
to
proceed
to
trial
because
there
is
no
genuine
issue
with
respect
to
the
claim
or
defence
(Collie
Woollen
Mills
Ltd.
v.
R.,
(sub
nom.
Collie
Woollen
Mills
Ltd.
v.
Canada)
[1996]
2
C.T.C.
152,
96
D.T.C.
6146
(F.C.T.D.)).
It
is
a
decision
to
be
made
on
the
particular
circumstances
of
each
case
and
on
the
law
and
the
facts
submitted
in
support
of
the
claim
or
defence
(Old
Fish
Market
Restaurants
Ltd.
v.
1000557
Ontario
Inc.
(1994),
58
C.P.R.
(3d)
221,
5
W.D.C.P.
(2d)
593
(F.C.T.D.)).
In
Pallmann
Maschinenfabrik
GmbH
Co.
KG
v.
CAE
Machinery
Ltd.
(1995),
98
F.T.R.
125,
62
C.P.R.
(3d)
26,
at
137
(C.P.R.
41),
Teitelbaum
J.
made
the
following
comments
with
respect
to
the
summary
judgment
rules:
...
Summary
judgment
should
not
be
granted
on
an
issue
where
either
on
the
whole
of
the
evidence
the
judge
cannot
find
the
necessary
facts
or
it
would
be
unjust
to
do
so.
I
am
of
the
view
that
summary
judgment
should
only
be
granted
in
circumstances
where
the
facts
are
clear.
lam
not
satisfied
that
the
waivers
are
invalid
for
failing
to
comply
with
the
statutory
requirements
contained
in
section
81.11
of
the
Excise
Tax
Act.
I
consider
the
comments
of
Reed
J.
in
Stanley
J.
Solberg
v.
R.,
(sub
nom.
Solberg
v.
Canada)
[1992]
2
C.T.C.
208,
92
D.T.C.
6448
(F.C.T.D.)
at
6452
(C.T.C.
213)
to
be
applicable:
The
appropriate
approach
to
the
interpretation
of
the
waiver
is
to
seek
to
ascertain
the
intention
of
the
parties
as
expressed
in
that
document
together
with
any
relevant
circumstances
for
which
evidence
is
available.
An
interpretation
of
the
intention
of
the
parties
is
a
matter
which
should
be
dealt
with
in
the
context
of
a
trial
where
viva
voce
evidence
can
be
heard
and
the
credibility
of
witnesses
can
be
assessed.
Therefore,
in
order
for
the
matter
to
go
to
trial,
the
application
for
summary
judgment
is
dismissed.
Costs
in
the
cause.
Application
dismissed.
Email this Content