https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/406212/index.do
Wilson v. Canada (May 22, 2019 – 2019 FCA 155 Dawson, Gauthier, Rivoalen, JJ.A.).
Précis: The Tax Court struck portions of the taxpayer’s Notice of Appeal and gave him 60 days to file an amended Notice of Appeal, which he failed to do. The Tax Court then ordered the taxpayer to file a compliant Notice of Appeal within 60 days. The taxpayer filed an amended Notice of Appeal and the Tax Court Judge concluded that the amended Notice of Appeal did not comply with the two preceding orders and dismissed the taxpayer’s appeal. The Federal Court of Appeal (per curiam) held that while dismissing an appeal on procedural grounds was a “severe remedy” there was “no palpable and overriding error of fact or mixed fact and law and no error of law by the Tax Court” so as to permit the Court of Appeal to allow the appeal [para. [25]]. Thus the appeal was dismissed with costs.
Decision: The Court of Appeal concluded that the Tax Court Judge had not erred in dismissing the appeal:
[19] We are satisfied that the appellant failed to comply with the applicable orders of the Tax Court. Contrary to the applicable orders, the amended notice of appeal contained new facts and allegations that were materially different from the facts and allegations originally set out in the notice of appeal, deleted paragraphs the Tax Court did not strike and repeated assertions previously struck by the Tax Court.
[20] To illustrate, in the original notice of appeal the appellant alleged in paragraph 3 that he used a service provider “to file the 2007 and 2010 income tax returns with the understanding it was to utilize business losses using a the [sic] definition of interest that comes from the Criminal Code Definitions (Section 347(2)).” Paragraph 3 of the amended notice of appeal alleged that the appellant used a service provider “to file the 2007 and 2010 income tax returns with the understanding they would provide a proper return.”
[21] A further illustration is the addition of a new paragraph, paragraph 9 in the amended notice of appeal, that asserts that a November 17, 2014 letter queried why penalties been imposed in circumstances where “the losses were never assessed or reassessed”.
[22] The amended notice of appeal deleted paragraph 4 of the original notice of appeal which had not been struck by the Tax Court. Paragraph 4 alleged that the service provider “said the process was legal and showed that other clients [sic] returns had been accepted.”
[23] With respect to the requirement that the amended notice of appeal specify the statutory provisions relied upon, the amended notice of appeal omitted a paragraph which the Tax Court had not struck that made certain allegations about the methodology of subsection 163(2) of the Act. In its stead paragraph 18 of the amended notice of appeal simply stated “Section 163 ITA based on income.”
[24] With respect to the requirement that the amended notice of appeal specify the relief sought, in paragraph 38 of the amended notice of appeal the appellant requested “a Remission Order pertaining to the Penalties.” and that “the penalties be removed.” The request for a remission order had previously been properly struck out by the Tax Court. The Tax Court has no jurisdiction to order any remission of penalties.
[25] We acknowledge that the dismissal of an appeal on procedural grounds is a severe remedy. However, we see no palpable and overriding error of fact or mixed fact and law and no error of law by the Tax Court. The Tax Court gave the appellant ample opportunity to comply with its orders and warned of the consequences if the appellant failed to comply.
As a result the appeal was dismissed with costs.