Judicial Comity

Table of Contents


Friedman v. Canada (National Revenue), 2021 FCA 101

not following a decision of a fellow Federal Court judge is not reviewable error

The Friedmans, a married couple, who had each received Requests for Information under s. 231.1(1) (“RFIs”) that were addressed to them personally, appealed the Federal Court decision granting a compliance order against them under s. 231.7(1). They submitted inter alia that the Federal Court failed to follow Lin, which in dealing with RFIs with essentially identical wording, found that compliance with the RFIs was not required because it was unclear whether the RFIs were directed to the taxpayers individually or to their related foreign entities.

In rejecting the second submission, Pelletier JA stated (at paras. 30-32):

… Judicial comity is a doctrine which seeks to promote uniformity and predictability in the law. Litigants and appellate courts expect that judges will consider the decisions of their colleagues carefully and, if they choose to differ, will explain why. …

But the failure to do so, or to do it convincingly, while regrettable, is not a basis for appellate intervention. As a result, the use of the expression “horizontal stare decisis” to refer to judicial comity is misleading precisely because judicial comity is not enforced by courts of appeal while stare decisis is.

As a result, the Federal Court committed no legal error when it declined to follow the Lin case. … The Federal Court came to its own conclusion that the necessary criteria had been satisfied by reference to the documents themselves. This is what it was required to do and it committed no error in doing so.

Locations of other summaries Wordcount
Tax Topics - Other Legislation/Constitution - Charter (Constitution Act, 1982) - Section 13 allegation that ss. 231.1 and 231.7 violated the Charter lacked a factual foundation and, in any event, there was no allegation of a criminal investigation 366
Tax Topics - Income Tax Act - Section 231.1 - Subsection 231.1(1) Jarvis also applies to allegations that CRA information requirements violate the Charter right not to self-incriminate 286
Tax Topics - General Concepts - Stare Decisis stare decisis does not apply horizontally 134

Ray-Mont Logistiques Montréal Inc. v. Canada (National Revenue), 2020 FCA 113

no error of Tax Court in not following Court of Quebec decision dealing with similar situation

In finding no reversible errors in the Tax Court respecting a finding that Quebec workers of the taxpayer were its employees, Boivin JA stated (at para. 21):

Finally, the appellant criticizes the TCC for failing to give any weight to the findings of the Court of Québec in a decision rendered nearly twenty years ago (Entreprises Yvon Bessette Inc. c. Québec (Sous-ministre du Revenu), [2002] R.D.F.Q. 331, [2002] J.Q. No. 10639 (QL) [Bessette]) that involved one of the appellant’s competitors. However, although the factual background may have certain similarities, it is important to note that in this case, the parties to the dispute and the evidence adduced were different. Contrary to the appellant’s arguments, the TCC was consequently not bound by the conclusions of fact of the Court of Québec in Bessette (see: 1392644 Ontario Inc. (Connor Homes) v. Canada (National Revenue), 2013 FCA 85, [2013] F.C.J. No. 327 (QL) at para. 20). Since the issue at the heart of the dispute of whether the workers are the appellant’s employees is essentially one of fact that has to be decided on the basis of the evidence in the record, the TCC did not err in the circumstances by determining that “[a]lthough the facts submitted were similar, this Court is not bound by this decision and must perform a thorough and independent analysis of the case before it” (TCC reasons at para. 49).

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 5 - Subsection 5(1) 4-part Wiebe test applied to find employment notwithstanding intent of Quebec parties not to be employer-employee 299

See Also

Menasse v. Agence du revenu du Québec, 2020 QCCQ 1829

TCC judgment on the same transactions not followed given the very brief reasons given

The appellants were assessed for unremitted GST and QST and to deny claimed input tax credits and input tax refunds. Their appeal of the GST assessments was dismissed from the bench, with brief reasons for judgment being provided.

In rejecting the ARQ’s submission that it was contrary to judicial comity and an abuse of process for the same transactions to be appealed respecting QST to the Court of Quebec (and before going on to grant the appellants’ appeals in part), Choquette JCQ stated (at paras. 22, 24 and 25, TaxInterpetations translation):

With respect, the judgment of the TCC is a transcript of the recording of the oral judgment and does not reveal the facts submitted or the Court's considerations … .

The judgment of the TCC deals very summarily with the evidence adduced, and its analysis, just as summarily, does not allow the Court to conclude that the same factual and legal framework prevails in these proceedings.

These circumstances are not sufficient to conclude that there was an abuse of process and to dismiss Mr. Cameus Menasse's appeal at this stage.

Tudora v. The Queen, 2020 TCC 11 (Informal Procedure)

principle of judicial comity applicable to previous Tax Court decision on the same donation program

The taxpayer participated in the same “Global Learning” charitable tax credit arrangement as had been considered in Mariano. After finding against the taxpayer on the grounds inter alia that the taxpayer had failed to advance any significant evidence to demolish the Minister’s assumptions, MacPhee went on to state (at paras 38, 39, 40, 41 and 43):

[U]nder the principles of stare decisis, judges of one Court are not bound by decisions of members of their own Court, but in accordance with the principles of judicial comity, judges should follow the decisions of their colleagues unless there is a cogent reason to depart from a prior decision.

Kossow … concluded that cases similar in nature should receive the same treatment… .

…[T]he Global program was litigated before the Tax Court in Mariano (which was a lead case). …

There is no cogent reason why I should not follow the decision by Justice Pizzitelli. …

My ruling should be and will be consistent with Mariano concerning donative intent. I find that the Appellant, as a result of his participation in this arrangement expected to be enriched. He therefore did not have the requisite donative intent.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 118.1 - Subsection 118.1(1) - Total Charitable Gifts no donative intent, as in Mariano 149

Congiu v. The Queen, 2013 TCC 271, aff'd 2014 FCA 73

judicial comity re Quebec decision

The appellant was appealing an assessment made by Revenue Quebec on behalf of the (federal) Minister under s. 270(4) of the Excise Tax Act in respect of a debt of a corporation of which she had been a receiver. Angers J noted (at para. 4) that (TaxInterpretations translation):

The issues before me are essentially the same as those put before Justice Lareau of the Court of Quebec and on which he has already pronounced. Only the legislative provisions on which the assessments rest are different ... .

There was an agreed statement of facts based on the findings of Lareau J.

After finding that it would constitute an abuse of process to consider the issues in the present appeal given their similarity to those disposed of by Lareau J., Anger J noted that the objective instead was for judicial comity and that "judgments on the same question be coherent" (para. 16).

In the Federal Court of Appeal (also dealing with an appeal on an ETA s. 325 issue), Blais CJ stated (at (para. 7) that "the decision of Justice Angers applying the principles of judicial comity [courtoisie judiciaire] was quite justified in the particular circumstances" and further noted the the Court of Quebec decision had since been affirmed in the Quebec Court of Appeal.

Locations of other summaries Wordcount
Tax Topics - General Concepts - Abuse of Process judicial comity re Quebec decision 299
Tax Topics - General Concepts - Res Judicata not res judicata where two different government litigants 266
Tax Topics - General Concepts - Stare Decisis 266

Houda International Inc. v. The Queen, [2011] GSTC 8, 2010 TCC 622

relitigation of same appeal extension ruled on in Quebec would be contrary to judicial comity

Houda was granted an extension from the Court of Quebec in its QST appeal on the basis that it was not at fault for its lawyer’s failure to timely file an appeal. Its parallel application in the Tax Court of Canada from a GST assessment, was granted on the basis that the two statutory extension tests were essentially the same, and the doctrine of “abuse of process” prevented relitigation of an issue already decided in another court. Boyle J further found (at para. 22) that “judicial comity” would be further grounds to avoid duplicating the litigation and avoid potential conflicting decisions:

According to the doctrine of judicial comity, reasoned judgments of such courts or judges should be deferred to in the absence of exceptional circumstances.

Locations of other summaries Wordcount
Tax Topics - Excise Tax Act - Section 305 - Subsection 305(5) - Paragraph 305(5)(b) relitigation of same appeal extension ruled on in Quebec would be abuse of process and contrary to judicial comity 233
Tax Topics - General Concepts - Abuse of Process relitigation of same appeal extension ruled on in Quebec would be abuse of process 143