Canada (National Revenue) v. McNally - FCA: Court declined to hear moot appeal

Canada (National Revenue) v. McNally - FCA:  Court declined to hear moot appeal

Canada (National Revenue) v. McNally (November 6, 2015 – 2015 FCA 248, Stratas (author), Near, De Montigny JJA.).

Précis:   The underlying issue in this case dealt with the Minister’s power to delay assessing a taxpayer who participated in a large tax shelter.  Mr. McNally brought an application to compel the Minister to assess his 2012 tax return and was successful in the Federal Court.  The Minister assessed Mr. McNally but also appealed the decision to the Federal Court of Appeal.  Mr. McNally advised that he would take no part in the appeal since he had obtained what he wanted.

In a decision blogged recently the Federal Court of Appeal directed the Crown to make submissions on whether the issue in the appeal was moot.  In its submissions the Crown conceded that the point was moot but asked the Court to exercise its discretion to permit the appeal to proceed.  The Court declined to do so and dismissed the appeal for mootness.

Decision:   The Court had little patience for the Crown’s argument:

[6]               The Minister wishes to continue this appeal to resolve jurisprudential issues she says are important. Broadly, these issues concern the scope of her authority to conduct an audit in the face of subsection 152(1) of the Income Tax Act which requires the Minister to review a taxpayer’s return for a particular taxation year and assess him or her for tax, interest and penalties “with all due dispatch.” The Minister has been undertaking a lengthy audit program into certain tax shelters and the Minister says this has taken much time, holding up the respondent’s assessment and the assessments of many others. The Minister raises the spectre of harm to its authority to conduct audits and to review tax returns if the Federal Court’s judgment is allowed to stand. In a general sense, the question the Minister raises and wants answered is what sorts of reviews or audits can hold up assessments.

[7]               On the first Borowski factor, the presence of an adversarial context, the Minister concedes that the respondent’s refusal to participate in the appeal takes away the adversarial context. This indeed is a problem. If this Court hears the appeal, will anyone occupy the other side of the courtroom? Will anyone be present to oppose the Minister’s submissions?

[8]               To address this problem, the Minister offers to pay the reasonable and proper costs of counsel “to present opposing arguments, whether that person is [the respondent’s] counsel…or another lawyer willing to take on that role.” But the problem remains. The respondent declines outright to participate in the appeal so counsel cannot be appointed for him against his will. And there are no other parties before the Court who could oppose the Minister.

[9]               It is true that in highly unusual circumstances of great public interest this Court can appoint an amicus to argue a position that would not otherwise be advanced. Here there are no circumstances of great public interest and the only party before the Court is the Minister: see Alliance for Marriage and Family v. A.A., 2007 SCC 40, [2007] 3 S.C.R. 124, a case similar to the case at bar, where the Supreme Court refused to permit the proceeding to continue.

[10]           On the second Borowski factor, judicial economy, the Minister points out that judicial economy is furthered where an appellate court decides to take on an important issue that is evasive of appellate review. In the abstract, I agree with that proposition. The Minister says that the question here—what sorts of reviews or audits can hold up assessments—is evasive of appellate review. I disagree with that.

[17]           Does the Minister advance a plausible challenge to these factual and legal findings in this Court? The only document I have before me that defines the issues in this appeal is the Minister’s notice of appeal. The notice of appeal simply says that the findings are capricious and in error. It does not say why and offers no particulars. Wholly bald notices of appeal count for very little, if anything: Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250 at paragraphs 38-48.

[18]           The Minister wants us to hear this case and tell her what sort of reviews or audits can justify holding up assessments. But she asks this in a case where on the facts and the law the Minister had no proper reason to hold up an assessment and the appeal, as pleaded, does not supply a particular or concrete ground that will shake that finding. We would be answering a question completely in the abstract, departing far from our proper adjudicative role, in circumstances where future cases can provide answers to the Minister’s question.

As a result the appeal was dismissed for mootness.  The respondent did not ask for costs and none were awarded.