Date: 20041001
Docket: T-2350-03
Citation: 2004 FC 1353
BETWEEN:
BRYON MOREY ARMSTRONG
Applicant
- and -
THE MINISTER OF
NATIONAL REVENUE
Respondent
[1] By notice of application filed December 10, 2003, the Applicant seeks the issuance of a writ of mandamus to compel the Respondent to make a determination of loss pursuant to subsection 152(1.1) of the Income Tax Act[1] "... for the applicant's Amended 1993 Income Tax Return." The grounds on which the Applicant seeks the foregoing relief are set out in his application in the following terms:
On December 20, 1997, the applicant filed an amended tax return for the 1993 taxation year apprising the Minister of a non-capital loss in the amount of $49,375.32 for the 1993 taxation year. Pursuant to S. 152(1.1) the Minister was required to make a determination of the loss and forward a Notice of Determination to the Taxpayer. No Notice of Determination respecting the amended return has been issued by the Minister of National Revenue, and on November 10, 2003, counsel for the Minister of National Revenue advised that no consideration would be given to the December 20, 1997 amendments.
[2] The factual background to this application may be briefly summarized as follows:
1. The Applicant appealed re-assessments in respect of his 1991, 1992 and 1993 taxation years that were issued on December 5, 1994. The issue for the 1993 taxation year was the disallowance of business losses;
2. On February 24, 1997, the Tax Court of Canada (the "Tax Court") dismissed the Applicant's appeal in respect of his 1993 taxation year;
3. On April 11, 1997, the Applicant appealed to the Federal Court of Appeal from the decision of the Tax Court regarding his 1993 taxation year;
4. On December 30, 1997, some ten months after the dismissal by the Tax Court of the Applicant's appeal in respect of his 1993 taxation year, the Applicant filed with Canada Customs and Revenue Agency ("CCRA") an amended return in respect of his 1993 taxation year as earlier referred to. The amounts disclosed in the amended return had not previously been reported to the Respondent or advanced as issues in the appeal that had been before the Tax Court;
5. On September 28, 1999, the Federal Court of Appeal affirmed the February 24, 1997 decision of the Tax Court to disallow the Applicant's deduction of business losses in respect of his 1993 taxation year;
6. There followed an extensive exchange of correspondence between CCRA and its counsel on the one hand and the Applicant and his counsel on the other;
7. On April 9, 2002, the Applicant filed an objection with the CCRA in relation to his 1993 taxation year, the objection relating to the amended return filed by him on December 30, 1997;
8. On December 21, 2002, the Applicant once again appealed to the Tax Court in respect of his 1993 taxation year, seeking to have the amended return filed by him on December 30, 1997 taken into account. Counsel for the Respondent sought to have the appeal quashed. On March 26, 2004, Justice Beaubier granted the Respondent's motion to quash;
9. On April 22, 2004, the Applicant filed an appeal in the Federal Court of Appeal with respect to Justice Beaubier's decision. A requisition for hearing in respect of that appeal was filed on September 21, 2004;
10. The Applicant currently has before the Respondent a request for relief in respect of his 1993 taxation year filed under the Fairness Provisions of the Income Tax Act.
[3] Justice Beaubier issued brief reasons for his decision of March 26, 2004 quashing the Applicant's second appeal in respect of his 1993 taxation year and, incidentally and not relevant for the purposes of this matter, in respect of his 1991 taxation year. Justice Beaubier's reasons were not before this Court on this application but were subsequently discovered in the Appeal Book filed with the Federal Court of Appeal on June 30, 2004. His brief reasons read in part as follows:
In the Court's view both of the entire taxation years in question here were previously dealt with by the Courts. At those times any allowable amendments could have been raised before trial. Once an appeal has been commenced it is for the Appellant's entire taxation year before the Court. Failure by the Appellant to bring an issue forward then is his own responsibility. Whether by negligence or by inadvertence he fails to do so is, again, his own responsibility. In other words, there is and there has to be an end somewhere. That end is the trial in the Tax Court of Canada or appeal in the Federal Court of Appeal, all as set out in the Income Tax Act. ...
Certainly, at this point, on any argument submitted by the Appellant respecting this motion and the purported appeals, the Tax Court of Canada is without jurisdiction under the Income Tax Act to hear a further appeal respecting the Appellant's 1991 or 1993 taxation years.
[4] In the memorandum of fact and law filed on behalf of the Appellant in the Federal Court of Appeal, one of the issues before that Court is stated in the following terms:
Did the learned Tax Court justice err in finding that the principle of res judicata or issue estoppel applied so as to determine all issues between the Respondent and the Appellant?
That is the principal issue that was before this Court on this application.
[5] Assuming, without deciding, that this Court has jurisdiction to grant mandamus on the facts of this matter - and I regard that as a rather questionable proposition given the scheme of the Income Tax Act and the exclusive jurisdiction of the Tax Court - I am satisfied that this is not a circumstance in which any such jurisdiction might appropriately be exercised. Mandamus is an extraordinary and discretionary remedy. Precisely the same issues in respect of which mandamus is here sought have essentially been dealt with by the Tax Court in the exercise of its jurisdiction and are now properly before the Federal Court of Appeal, at the instance of the Applicant in this matter. These must surely be among the most obvious circumstances in which this Court should decline to even seriously consider a grant of extraordinary and discretionary relief.
[6] For foregoing reasons, this application will be dismissed.
[7] The Respondent does not seek costs. That being said, I am satisfied that the circumstances of this matter justify an order of costs in favour of the Respondent. It will, of course, be at the discretion of the Respondent as to whether payment of those costs is demanded.
(Sgd.) "Frederick E. Gibson"
Judge
Vancouver, BC
October 1, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2350-03
STYLE OF CAUSE: BRYON MOREY ARMSTRONG
v. THE MINISTER OF NATIONAL REVENUE
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: September 28, 2004
REASONS FOR ORDER: GIBSON, J.
DATED: October 1, 2004
APPEARANCES:
Mr. Douglas Marion FOR APPLICANT
Mr. Stacey Repas FOR RESPONDENT
SOLICITORS OF RECORD:
Marion & Company FOR APPLICANT
Campbell River, BC
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada