Abdalla v. R. – TCC: Tax Court declines to set aside waivers

Abdalla v. R. – TCC:  Tax Court declines to set aside waivers


Abdalla v. The Queen (November 10, 2017 – 2017 TCC 222, Rossiter C.J.).

Précis:   The Crown moved to quash the appeals of Ms. Abdalla and 26 other taxpayers on the basis that each of them had executed an Agreement to be Bound and Waiver of Objection and Appeal Rights (the “Waiver”) in respect of a lead appeal known as Mariano v. The Queen, 2015 TCC 244.  In Mariano the Court found that the donation plan at issue was a sham and dismissed the appeal.  In Abdalla the taxpayers argued that the Waiver was ineffective for a variety of reasons.  The Court rejected the various reasons proffered by the taxpayers and quashed their appeals, with costs to the Crown.

Decision:   The taxpayers attacked the Waiver on a variety of bases:

[1]              This matter came before the Tax Court of Canada by way of Notice of Motion by the Respondent wherein the Respondent sought to quash the appeal presented to the Tax Court of Canada by the Appellant, Salwa Abdalla,  for  the 2007 and 2009 taxation years, pursuant to section 12 of the Tax Court of Canada Act and subsection 169(2.2) of the Income Tax Act (the “Act”). The Respondent sought to quash the appeal on the basis that the Appellant was bound by a lead appeal known as Mariano v The Queen, 2015 TCC 244, pursuant to an Agreement to be Bound and Waiver of Objection and Appeal Rights. The Appellant took a position to the contrary indicating that there were three reasons why the Motion should not be granted. The three reasons were in relation to the Agreement to be Bound and Waiver of Objection and Appeal Rights. The three reasons are:


a)     no valid consideration exchanged for the Appellant’s promise;

b)    Canada Revenue Agency (“CRA”) created conditions whereby the Appellant’s consent was not fully informed; and

c)     the Waiver was obtained by way of undue pressure.

The Court made short work of these arguments. On consideration, the Court held as follows:

[15]         The first issue to be considered is whether or not a Waiver requires consideration. I accept the submissions of the Respondent on this point referring to W.J. Alan  & Company Limited v El Nasr Export & Import Company, [1972] 2 QB 189, [1972] 2 All ER 127, which basically held that no consideration needed to be moving from the party which benefits from the waiver. This case was decided by Lord Denning, Master of the Rolls, at that time. The Supreme Court of Canada is noted by the Respondent to have adopted similar principles in Saskatchewan River Bungalows where the Court stated, at paragraph 20, in part, as follows:

... The creation of such a stringent test is justified since no consideration moves from the party in whose favour a waiver operates….

[16]         The Supreme Court of Canada has spoken on the issue and as far as I can determine, this is still the law no consideration is required. If I am in error on this particular point that consideration is required, I am of the view that there is good and valid consideration flowing to the Appellant. The Appellant received the benefit of not having to spend any time or effort or cost because her appeal did not proceed to the Tax Court of Canada. In addition, the Respondent held the Appellant’s objections in abeyance, and ensured the Appellant’s assessments would be confirmed in accordance with the lead case. Each of those in and of themselves is sufficient and adequate consideration in my mind for such a waiver.

Similarly the argument that there was no informed consent was rejected:

[22]         In this particular case, the CRA did give quite a bit of information that the rights have been waived and the information was given in the Waiver and in the letter and I would consider 30 days to be ample time. While the CRA could have given more time, 30 days certainly was ample time to get advice. There were three specific references to various contact particulars if the Appellant had any questions about the Waiver. It should be noted that the only evidence before the Court on this particular matter is the evidence of the Affidavit of Ramona Rudeanu referred to aforesaid. There is no evidence of impropriety at any time about the conduct of CRA, nor is there any evidence of any enquiries that have been made by the Appellant for further particulars, or any indication of any nature whatsoever if there was a lack of understanding with respect to the rights being waived. The Appellant did not introduce an affidavit in support of any such argument, nor did the Appellant take the witness stand to rebut such suggestion.

[23]         Basically, the Respondent suggested that the Appellant knew or ought to have known what she was signing. I agree with this argument given the documentation which was presented to her had a length and breadth of the explanation.

Finally the Court rejected the undue pressure argument:

[27]         I see no evidence whatsoever which would indicate that there was any undue pressure brought upon the Appellant to sign the form in question. It appears to me that the Appellant had opportunities to sign the waiver over a period of time and did so. Then when the decision on the test case came in and she was not satisfied with the reassessment based upon the Agreement to be Bound and Waiver of Objection and Appeal Rights she decided to proceed with an appeal. Quite simply, I think that the Appellant is bound by the Agreement to be Bound and Waiver of Objection and Appeal Rights and the Motion of the Respondent is granted.

As a result the appeals were quashed with costs to the Crown.