Date: 20040128
Docket: T-1825-01
Citation: 2004 FC 130
Toronto, Ontario, January 28th, 2004
Present: The Honourable Mr. Justice Phelan
BETWEEN:
BEVERLY RUTH DWYER
Applicant
and
L. SHEVKENEK, A.J. STARCEVIC,
CANADA CUSTOMS AND REVENUE AGENCY,
MINISTER OF NATIONAL REVENUE,
ATTORNEY GENERAL OF CANADA,
PETERBOROUGH COMMUNITY CREDIT UNION
Respondents
REASONS FOR ORDER AND ORDER
Nature of Proceedings
[1] This is an application for judicial review commenced under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 as amended.
[2] The Applicant seeks to review the decision of L Shevkenek, Director, Tax Services Office, dated September 7, 2001, to issue a requirement (the "Requirement") to the Peterborough Community Credit Union ("PCCU") to produce financial records with respect to the Applicant.
[3] The Requirement was be based on the authority contained in section 232.1(1)(a) and (b) of the Income Tax Act, R.S.C. 1985 (5th Suppl.) ("The ITA").
[4] The Applicant seeks, a declaration that in issuing the Requirement, the Respondents (as originally described in the style of cause) violated the Applicant's Charter and common law rights, an order quashing the decision, an injunction preventing the Respondents from taking further proceeding against the Applicant, and solicitor-client costs.
Preliminary Matters
[5] The Applicant was reported to be too ill to attend the hearing of this matter. As this matter had been adjourned or delayed several times and had finally been ordered to be heard this day, with the written authorization of the Applicant (counsel having been dismissed) her husband Arthur Dwyer was permitted to speak on her behalf.
[6] The Respondent, Attorney General of Canada requested that the style of cause be amended to delete all Respondents other than the Attorney General of Canada. The request was granted.
Facts
[7] The history of this and related proceedings need not be set out here. Suffice it to say that the Requirement was issued for purposes of pursuing collection of amounts claimed to be owed by the Applicant's husband under circumstances where Canada Customs and Revenue Agency ("CCRA") had reason to believe that funds which could be available to settle that debt had been transferred to the Applicant by her husband.
[8] The record would suggest that the Requirement was issued without notice to the Applicant, although directed to the Applicant's financial institution, the PCCU. The record further establishes that the Applicant was given no reason for or any indication of the basis for issuing the Requirement.
Reasons
[9] The Applicant's husband admitted that CCRA records show that he owed approximately $1.2 million in taxes, interests and penalties. He alleges that this is all in error and that matters are being resolved between his accountant and CCRA officials.
[10] The Applicant concedes, that if CCRA's records showed such an amount as owing, then the actions of CCRA, including that of issuing the Requirement, was justified. In essence this Application became moot and ought therefore to be dismissed.
[11] The Respondent's counsel requested that costs be awarded in favour of the Respondent. No such cost award will be made.
[12] The Applicant's proceeding raised legal issues, which on other facts and in other circumstances, may be fairly argued.
[13] The Requirement is not some simple and innocuous administrative act. It has the effect of intruding into a taxpayer's affairs and records, disclosing to third parties the existence of difficulties with the tax authorities (a matter which many people would prefer not to disclose) and injecting the government into the middle of the relationship between a taxpayer and their financial institution.
[14] Given the increased importance of privacy interests and the right of a taxpayer to challenge such actions by CCRA, in proceedings such as this, (if they become aware of such actions) consideration should be given by CCRA to those rights and interests. Consideration should also be given to the corresponding duty to notify a taxpayer when a requisition is issued and to provide some indication of the reasons therefor.
[15] This application, having raised legitimate issues of law, is not one where upon dismissed for other reasons, costs ought to be awarded against the Applicant.
ORDER
THIS COURT ORDERS that:
1. The style of cause is to be amended to delete all Respondents other than the Attorney-General of Canada.
2. This Application be dismissed without costs to either party.
"Michael L. Phelan"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-1825-01
STYLE OF CAUSE: BEVERLY RUTH DWYER
Applicant
and
L. SHEVKENEK, A.J. STARCEVIC,
CANADA CUSTOMS AND REVENUE AGENCY,
MINISTER OF NATIONAL REVENUE,
ATTORNEY GENERAL OF CANADA,
PETERBOROUGH COMMUNITY CREDIT UNION
Respondents
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 27, 2004
REASONS FOR ORDER
AND ORDER BY: PHELAN, J.
APPEARANCES BY:
Mr. Art Dwyer
FOR THE APPLICANT
Mr. James Gorham
FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Mr. Art Dwyer
Peterborough, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENTS
FEDERAL COURT
Date: 20040128
Docket: T-1875-01
BETWEEN:
BEVERLY RUTH DWYER
Applicant
and
L. SHEVKENEK, A.J. STARCEVIC,
CANADA CUSTOMS AND REVENUE AGENCY, MINISTER OF NATIONAL REVENUE, ATTORNEY GENERAL OF CANADA, PETERBOROUGH COMMUNITY CREDIT UNION
Respondents
REASONS FOR ORDER
AND ORDER