Heath v. R. – TCC: Court refused to set aside a Notice of Discontinuance filed by the taxpayer.

Heath v. R. – TCC:  Court refused to set aside a Notice of Discontinuance filed by the taxpayer.


Heath v. The Queen (June 27, 2018 – 2018 TCC 119, Smith J.).

Précis:   The taxpayer filed a Notice of Discontinuance only to find the next day that the Crown was prepared to accept a settlement.  Nevertheless both the taxpayer and the Crown signed a consent to judgment to implement the proposed settlement.  This was rejected by the Tax Court Registry which advised the parties that they would have to take a motion to set aside the Notice of Discontinuance.  Smith J. dismissed the motion holding that he did not have jurisdiction to set aside the Notice of Discontinuance.

Decision:   The Court relied upon a decision of the Federal Court of Appeal to conclude that it was without jurisdiction to set aside Ms. Heath’s Notice of Discontinuance:

[8]  Scarola involved an appeal from a decision of the Tax Court of Canada where the Court, “relying upon the wellestablished principle that every court has the authority required to govern its own proceedings (…) claimed an inherent jurisdiction to set aside the notice of discontinuance and concluded that the facts (…) warranted to exercise of the jurisdiction” (para.8).

[9]  The Federal Court of Appeal (the “FCA”) did not agree. It referred to section 16.2 of the Tax Court of Canada Act, R.S.C. 1985, c. T2, which provides as follows:


16.2 (1) A party who instituted a proceeding in the Court may, at any time, discontinue that proceeding by written notice.

Effect of discontinuance

(2) Where a proceeding is discontinued under subsection (1), it is deemed to be dismissed as of the day on which the Court receives the written notice.

[10]  Having reviewed the relevant case law, the FCA concluded that “Parliament has chosen to legislatively determine the legal consequences of a notice of discontinuance”, rather than leaving it to judicial discretion (para. 18). It added that “An appeal discontinued is, pursuant to subsection 16.2(2), an appeal dismissed. An appeal dismissed is an appeal disposed of, and an appeal which has been disposed of no longer exists” (para. 21). The FCA went on to find that a discontinuance under subsection 16.2(2) “produces the same effect as a judgment of dismissal by the Court” (para. 21).

[13]  In this instance, as in Scarola, there is no allegation of fraud or of facts discovered or that have arisen after the dismissal of the appeal. It may be that the Appellant’s decision was hasty, but the suggestion that she was not represented by legal counsel or that she may not have been properly served by the Canada Revenue Agency throughout the audit stage, are not matters than can be considered by this Court in a motion to set aside or vary a judgment, in a proceeding that was “deemed to be dismissed” (Rule 16.2(2)), when the Court received the notice of discontinuance.

[14]  This analysis effectively disposes of the motion as far as this Court is concerned. The result is unfortunate and likely a hard pill to swallow for the Appellant since the Minister had in fact agreed to grant the appeal as evidenced by the consent to judgment noted above. I leave it to the Minister to consider the appropriateness of a reassessment to implement the terms of the consent, possibly pursuant to subsection 298(2) of the Excise Tax Act, R.S.C. 1985, c. E15.

Thus the motion was dismissed, without costs.