Olumide v. R. - FCA: No error by the Tax Court Judge - appeal dismissed

Olumide v. R. - FCA:  No error by the Tax Court Judge - appeal dismissed


Olumide v. Canada  (January 15, 2016 – 2016 FCA 10, Ryer (author), Near, Rennie JJ.A.).

Précis:   The taxpayer brought an application before Justice Woods in the Tax Court seeking to reopen two previous orders of the Tax Court made in separate GST appeals.  Justice Woods dismissed the application without allowing an oral hearing on the basis that the two previous orders were both final and there was no basis upon which they could be reopened.  On appeal the Federal Court of Appeal concluded that there was no error on the part of Justice Woods and dismissed the appeal with costs.

Decision:    The Court of Appeal made short work of this appeal:

[11]           A careful review of the Taxpayer’s memorandum of fact and law has not persuaded me that Justice Woods made any error of fact, law, or mixed fact and law in reaching her conclusion that the requirements for reconsideration of the 2012-2281 Order and the 2014-4590 Order under Rule 172 of the Tax Court Rules had not been satisfied.

[12]           In addition, a careful review of the Taxpayer’s Notice of Constitutional Question leads me to the conclusion that it does not challenge the “constitutional validity, applicability or operability of an Act of Parliament or of the legislature of a province, or of regulations made under such an Act” as required by subsection 57(1) of the Federal Courts Act, R.S.C. 1985, c. F-7. Accordingly, in my view the Notice of Constitutional Question adds nothing to the Taxpayer’s memorandum of fact and law.

[13]           The Notice of Constitutional Question alludes to the possibility that the Taxpayer has been subjected to cruel and unusual treatment or punishment, in contravention of section 12 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. I conclude that an adjudication of this question would have no bearing upon the issue of whether Justice Woods erred in dismissing the 2015 Application and, in any event, such an adjudication by this Court is not possible by virtue of the absence of evidence of any such treatment or punishment. At most, paragraphs 107 to 127 of the Notice of Constitutional Question pose a number of questions in that regard. Moreover, by order dated November 23, 2015, Justice Nadon dismissed the Taxpayer’s motion for leave to adduce evidence of such treatment or punishment in this appeal.

As a result the appeal was dismissed with costs.