Date: 20040720
Docket: A-285-04
Citation: 2004 FCA 264
BETWEEN:
JON BRESLAW
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on July 20, 2004.
REASONS FOR ORDER BY: NOËL J.A.
Date: 20040720
Docket: A-285-04
Citation: 2004 FCA 264
PRESENT: NOËL J.A.
BETWEEN:
JON BRESLAW
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
[1] This is a motion by the Crown to dismiss an appeal lodged by the appellant against an order of Archambault J. dated May 26, 2004.
[2] By that order, Archambault J. refused to grant the appellant's application for an order setting aside the assessments issued against him for the 1997 and 1998 taxation years. The application was brought on the ground that the Tax Court Judge who heard the appellant's appeal pursuant to the informal procedure had failed to dispose of it within the 90 day period contemplated by subsection 18.22(1) of the Tax Court of Canada Act, 1980-81-82-83, c. 158, s. 1 (the Act).
[3] Upon being seized with the respondent's motion, the Court directed the parties to submit written representations as to whether the appeal ought not to be dismissed on the further ground that it was bereft of any chance of success. The Court in its direction pointed out that:
By virtue of paragraph 18.22(1) of the Tax Court Act, the Tax Court's obligation to issue reasons within 90 days of the hearing is subject to "exceptional circumstances" and for that purpose, paragraph (2) thereof provides:
18.22 (2) For the purposes of subsection (1), "exceptional circumstances" includes circumstances in which written material that the Court requires in order to render a judgment was not received in time to permit the Court to consider it and to render judgment within the time limit imposed by that subsection.
Upon perusal of the record, it became apparent that the Tax Court Judge requested the transcript of the hearing and that it was received by the Court on January 30, 2004. The decision was rendered on April 27, 2004, that is within 90 days from the day on which the transcript was received by the court.
[4] The Court is now in a position to dispose of the original motion and the issue raised by its direction
[5] With respect to the former, the Crown maintains that the order under appeal is interlocutory in nature and as it arises in respect of a proceeding governed by the informal procedure, the Court is without jurisdiction to hear it (reference is made to subsection 27(1.2) of the Federal Courts Act).
[6] I am not certain that the decision in issue is interlocutory in nature. Whatever rights accrue to a taxpayer for a breach by the Tax Court of its statutory obligation to render a decision within the 90 day period (the Act is silent in this regard), the decision in issue appears to put a definite end to their pursuit. The motion for dismissal will accordingly be denied.
[7] As to the second issue, the threshold for the summary dismissal of an appeal is very high, and while I have serious doubt about the validity of the appellant's position, the written representations which he has filed do raise an arguable case. The appeal will therefore be allowed to continue.
"Marc Noël"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-285-04
STYLE OF CAUSE: Jon Breslaw and The Attorney General of Canada
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: Noël J.A.
DATED: July 20, 2004
WRITTEN REPRESENTATIONS BY:
|
Jon Breslaw |
APPELLANT ON HIS OWN BEHALF
|
|
Susan Shaughnessy |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
Jon Breslaw Westmount, Quebec |
APPELLANT ON HIS OWN BEHALF
|
|
Mr. Morris Rosenberg Deputy Attorney General of Canada Ottawa, Ontario |
FOR THE RESPONDENT |