Johnson (No. 2) v. R. – FCA: Tax Court strikes pleadings attacking collection activity of CRA – appeal dismissed

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Johnson v. Canada (February 23, 2015 – 2015 FCA 52, Nadon, Webb (Author), Boivin JJA).

Précis: This decision is the second appeal of Mr. Johnson decided on the same day; I have termed it (No. 2). The Tax Court ordered various paragraphs of his Notice of Appeal attacking CRA’s collection activity struck. It also granted the Crown an extension of time to file its Reply. The Court of Appeal agreed with the Tax Court’s decision to strike the impugned paragraphs. The Court concluded that it had no jurisdiction to reverse the Tax Court’s discretionary decision to grant an extension to the Crown. The other remedies sought by the taxpayer were also dismissed.

Decision: The Tax Court ordered paragraphs of Mr. Johnson’s Notice of Appeal attacking the collection activities of CRA struck:

[5] In paragraph 25 of his decision, the Tax Court Judge described the paragraphs that he was striking from the notice of appeal as follows:
  • Paragraph 19 relates to the administrative act of the Minister setting up a GST account and collection actions of the Minister
  • Paragraphs 22, 23, 28, 32 and 33 relate to collection actions of the CRA
  • Paragraph 37 relates to the amount of time the Minister took to address the Appellant’s notice of objection and collection actions of the Minister
  • Paragraphs 43 and 44 relate to a purported abuse of process with respect to the issuance of the Notice of Assessment. Also, when read with the pleaded facts, the paragraphs relate to the collection actions of the CRA.

The Court of Appeal agreed with the Tax Court Judge:

[6] Mr. Johnson can challenge whether there was a partnership, the members thereof (if there was a partnership), and the taxable supplies made in the particular reporting periods. These are all matters that could be addressed by the Tax Court of Canada in determining whether the assessments issued reflect the correct amount owing under the Act by the person who was assessed. However, any collection action taken by the Minister is not relevant in determining whether the assessments (upon which the collection action would be based) are correct.

[7] I agree with the conclusion of the Tax Court Judge that the paragraphs referred to above should be struck from the notice of appeal to that court.

Similarly there was no basis to interfere with the decision to grant the Crown an extension of time to file a Reply:

[10] The reply was not filed within the 60 day period referred to in Rule 44. The Tax Court Judge granted an extension of time to file the reply, as provided in paragraph 44 (1) (b) of the Rules. This was a discretionary decision of the Tax Court Judge. As noted by this Court in Prasad v. Canada (Minister of Employment and Social Development), 2015 FCA 22:

6 This Court can only interfere with the Judge’s discretionary decision if he proceeded on a wrong principle of law, gave insufficient weight to relevant factors, misapprehended the facts or where an obvious injustice would otherwise result (See Apotex Inc. v. Canada (Governor in Council), 2007 FCA 374 at para 15).

[11] In this case, there is no basis upon which to interfere with the Tax Court Judge’s discretionary decision to grant an extension of time to file the reply.

The Court also rejected Mr. Johnson’s request for an order holding the facts pleaded in his Notice of Appeal were presumed to be true or for default judgment:

[13] Therefore, the granting of the extension of time to file the reply nullified any right that Mr. Johnson may have had to have an order issued to presume the facts alleged in the notice of appeal to be true.

[14] Rule 63 also provides that an appellant can only apply for a motion for judgment if “a reply to a notice of appeal has not been filed and served within the applicable times specified under section 44” (emphasis added). The reference to the plural “times” clearly indicates that this Rule only applies under the same conditions as noted above for subsection 44(2) of the Rules. The granting of the extension of time by the Tax Court Judge provided a new time for filing the reply under Rule 44 and nullified the right of Mr. Johnson granted by Rule 63 to “apply on motion for judgment in respect of the relief sought in the notice of appeal”.

As a result this second appeal was dismissed, with costs.