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Justice Russell     BETWEEN: PATRICK NICHOLLS Applicant and   CANADA (REVENUE AGENCY) and MINISTER OF NATIONAL REVENUE Respondents   REASONS FOR JUDGMENT AND JUDGMENT   APPLICATION   [1]                This is an application for judicial review of a decision by the Canada Revenue Agency (CRA) dated March 9, 2009 (Decision) not to extend the time limit within which the Applicant could file notice under subsection 122.62(2) of the Income Tax Act (Act) to be considered as an eligible individual to receive the Canada Child Tax Benefit (CCTB) for certain months during which CRA was statute-barred from recovering CCTB benefits already paid to the Applicant’s estranged wife for their children, Charles and Penny, during the same period.   ... RELEVANT STATUTORY PROVISIONS   [22]            The following provisions of the Act are applicable to the present application: 122.62 (1) For the purposes of this subdivision, a person may be considered to be an eligible individual in respect of a particular qualified dependant at the beginning of a month only if the person has, no later than 11 months after the end of the month, filed with the Minister a notice in prescribed form containing prescribed information ... STANDARD OF REVIEW   [24]            Subsection 122.62(1) of the Act provides that a person may be considered an eligible individual to receive CCTB payments in respect of a particular qualified dependant at the beginning of a month only if that person has, no later than 11 months after the end of the particular month, filed with the Minister a notice in prescribed form containing prescribed information. ...

.), supported the decision to compel her to inform herself and to provide written answers. [7]                The Prothonotary stated that “the main ground of attack in this judicial review is whether the process followed by CRA and the factors it considered in making its decision were consistent with the proper exercise of discretion under the ETA.”  ... [11]            TELUS contends that the timing of the CRA's motion to strike should be considered by the Court as a factor militating against granting the motion.  ... However, Justice MacKay considered the statutory scheme under the ETA and concluded at para. 11 that the objection and appeal procedure did not remove the remedy of mandamus from the Federal Court’s jurisdiction: My reading of those various statutory provisions leads me to conclude that they do not expressly provide, as required by s. 18.5 of the Federal Court Act, that an application for mandamus is removed from this Court's jurisdiction, which would otherwise be heard in appropriate circumstances to require the Minister to perform a public duty under the Excise Tax Act ...

This means that where an issue is clearly related to the control and exercise of powers of an administrative agency, which includes the interim measures to regulate disputes whose final disposition is left to an administrative decision-maker, the Federal Court can be considered to have a plenary jurisdiction ...   [56]            Permanent market loss or irrevocable damage to business reputation could be considered irreparable harm (RJR-MacDonald, above, at para. 59; reference is also made to TPG Technology, above, at para. 23). ... Whether the interest of the public, both of society in general and of particular identifiable groups, would be better served by either the granting or denial of an interim stay is also considered in weighing the balance of convenience ...

As Justice Leonard Mandamin explained in Wloch v Canada (Revenue Agency), 2010 FC 743 at para 21: [21] […] at issue is whether the reviewer considered the appropriate factors in arriving at his decision. ...   [59]            The Respondent argues that adequacy of reasons needs to be considered in the context of, “the day-to-day realities of administrative agencies and the many ways in which the values underlying the principles of procedural fairness can be assured,” (Baker, above, para 44).  ...   [60]            While I accept that the Decision Reviewer is under certain administrative constraints, and Parliament has given the CRA the authority to set out procedures in order to make these decisions in an efficient fashion, he is still obliged to provide reasons that assure the Applicants that he considered their submissions and allows them to decide whether to exercise judicial review (Ragupathy v Canada (Minister of Citizenship and Immigration), 2006 FCA 151, [2007] 1 FCR 490).  ...

If it is Crown land, the related issue is whether it can still be considered as reserve land in accordance with the definition of “reserve” in Ontario Regulation 649/93 to the Ontario Tobacco Tax Act, RSO 1990, c T 10. ... Application for judicial review within 30 days [22]            In response to the respondent’s submissions that this application was made well beyond the time limits set out in subsection 18.1(2) of the Federal Courts Act, the applicant argues that the 30 day time limit must be considered in the context of the respondent’s ongoing conduct rather than from a specific point in time. [23]            The applicant appears to advance three arguments regarding the time limit. ... It is also necessary to determine whether the decision-maker is “exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown…” which does not include powers conferred under a provincial statute. [33]            The respondent submits that to determine whether the First Nation falls within the definition, the two-step analysis established in Anisman must be considered: it must be determined what jurisdiction or power the body or person seeks to exercise; and then the source or the origin of the jurisdiction or power which the body or person seeks to exercise must be determined (Anisman, above, at para 29). ...

No unreasonable delay [41]            It remains to be determined, however, whether the time it has taken, up to now, to complete the investigations into the applicants’ complaints and issue the reports on the Commissioner’s findings can be considered to be an unreasonable delay. [42]            In Conille v Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33, at para. 23 [Conille], the Federal Court established that the following three conditions must be met for a delay to be considered unreasonable: the delay has been longer than the necessary delay normally required by the nature of the process and for conducting the proceedings in question; the applicant and his or her counsel are not responsible for the delay; and the administrative tribunal has not provided satisfactory justification for the delay. [43]            It should be added that, as the Supreme Court stated in Blencoe, at para. 122, the determination of whether a delay has become inordinate depends on, among other things, the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings. [44]            It is common ground that the applicants and their legal counsel are not responsible for the delay. [45]            However, based on the analysis of the evidence in the record and considering the provisions of the AIA, I am of the opinion that the applicants have not shown that the delay in processing their complaints exceeds the time required for the Commissioner to conduct an investigation. ... Although this is a contextual factor to consider, I nonetheless note that delays attributable to a government institution’s limited resources or to a growing volume of complaints cannot be considered as an explanation that could justify a delay that would otherwise be unreasonable (Dragan v Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189, at para. 57 [Dragan]). [50]            It is also important to place the longer investigation time in the more specific context of the complaints filed by the applicants. ...

It ultimately found that these two positions at the Agency’s national headquarters – the “National Specialist, Meat Processing Program” and the “Senior Staff Veterinarian” positions – involved responsibilities “for work at a national level,” requiring more extensive knowledge and a broader strategic understanding of national issues and “had a direct impact on operations at the Agency level having functional orientations on the [subject positions], as described in their work descriptions.” [12]      Under the “Evaluation” heading, the Committee strove to demonstrate, by comparing the work description for the Subject Position to the work description for BMP-5, supra, BMP-4 (District Veterinarian) and BMP-8 (Veterinary Drugs Evaluator) positions, that the two factors at issue – Kind of Assignments and Complexity of Work, were correctly evaluated at the VM-03 level. [13]      It should be noted that the Committee did not consider it relevant to contact the two designated management representatives because one of the Committee members, Nicole Bouchard-Steeves, [translation] “had extensive knowledge of the work performed by the complainants and was considered a subject matter expert.” ... I must therefore ask myself, as the applicants have asked me to do, whether the decision rendered by the Committee is affected by the same flaws as those which led the Court to find that the Committee’s decision was procedurally unfair, having considered the 2010 Grievance. ... I note here that an agreement was reached on the work description for the Subject Position pursuant to a work description content grievance raised under the collective agreement binding the applicants and the Agency. [24]      As in Allard, the issue to be resolved here is whether the Committee modified the work description and found, as the Committee that adjudicated the 2010 Grievance, that it should dismiss the grievance before it, or whether it has simply considered the information before it to ensure that it understands the nature of the applicants’ duties. [25]      In Allard, De Montigny J. noted that the management representatives who had been called before the Committee had not simply modulated the applicants’ responsibilities to take into account the context in which the activities in the work description were performed, but had in many respects challenged the very nature of these activities. ...

The Applicant did not report the $15,000 contribution referred to in F above; he considered it could have been reported in respect of either his 2009 or 2010 taxation year tax returns; J.                    ... This case is to be considered on the basis of the reasonableness of the answers given to the following two questions that were before the delegate: 1.                   ...

There may also be external matters such as of defence which equally, for the same reasons, must be held to be within that safeguard, the facts of which may, in the discretion of ministers or government, be disclosed as considered desirable. ... A similar situation might conceivably arise in litigation between the Crown and a subject where it was considered necessary to prevent the subject from producing a document in his possession on the ground that this would be injurious to public interests. ... :Question No. 1 may, at a first reading, appear to be ambiguous; but when it is considered in the light of the arguments addressed to us by both counsel it becomes clear that it is directed to a case in which the objection to the production of the documents called for in the subpoena duces tecum is based not upon any apprehended danger to the public interest from disclosure of the matter contained in the particular returns and other documents of which production is sought but upon the view entertained by the Minister that as a matter of public or departmental policy he ought to object to the production from the custody of the department of any income tax returns or correspondence relating thereto. ...

There was no written contract and the matter was not considered by the Board of Directors. ... The respondent company acted upon the authority of the resolutions and paid Jacox and the others on the basis authorized, a procedure which was apparently considered by the directors at a meeting held on September 24, 1941, when a statement giving detailed records of the operations of the company for the eight months ending August 1941 was read and discussed and apparently approved. ... Jacox considered it proper to obtain the authority of the shareholders and, as in the case of his own arrangement, this was done with the authority and approval of the directors. ...