http://decisions.fca-caf.gc.ca/site/fca-caf/decisions/en/item/37674/index.do 
Edwards v. The Queen[1] (December 14, 2012) is a rare example of the Federal Court of Appeal reversing the Tax Court on a purely procedural matter. Mr Edwards’ appeal was a test case for a large charitable donation program. He asked for an adjournment based on the fact that the rules respecting charitable gifts had been in a state of limbo since 2002:
[4] Mr. Edwards requested an adjournment of twelve months pending the enactment of proposed amendments to the Income Tax Act, R.S.C. 1985, c 1 (5th Supp.) concerning the tax treatment of charitable gifts. In certain circumstances, they allow a taxpayer to claim a charitable deduction in respect of a portion of a donation to a charity where the value of the donation exceeds the value of the benefit received. He said that, if enacted, the proposed amendments might assist him either to reach a settlement with the Minister of National Revenue or to win his appeal. The Budget of March 2012 indicated the Government’s intention to enact the proposed amendments, which would be made retroactive to December 2002, when they were first announced.
[5] Even though the proposed amendments have not been enacted, the Canada Revenue Agency (CRA) has been applying them as if they were already law, and has stated that taxpayers may rely on CRA guidelines issued on December 24, 2002 explaining its administration of the proposed amendments. However, the CRA has refused to give Mr. Edwards the benefit of the proposed amendments because, it says, the circumstances of his donation take it outside their scope. Because the proposed amendments are not law, Mr. Edwards cannot appeal an assessment to challenge the Minister’s view that they do not apply to the facts of his case.
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[7] Because it was uncertain whether or when the proposed amendments would be enacted, or whether, even if enacted, they applied to Mr Edwards’ situation, the Motions Judge did not regard this case as “a rare circumstance” (Johnson & Johnson Inc. v. Boston Scientific Ltd., 2004 FCA 354 at para. 3) in which an adjournment should be granted pending the enactment of legislation that could affect the outcome of an appeal.
The Court of Appeal reversed the Tax Court largely because shortly prior to the hearing of the appeal the proposed amendments received first reading in the House of Commons:
[13] For these reasons, I would allow the appeal and adjourn the hearing of Mr. Edwards’ Tax Court appeal until November 26, 2013, or such earlier date as the proposed amendments are enacted, defeated or withdrawn. This is the length of the adjournment that Mr Edwards’ counsel proposed to us. Counsel also undertook not to seek another adjournment of the appeal if the proposed amendments are not enacted by November 26, 2013. Absent extraordinary circumstances, no further adjournments should be granted in this matter.
[14] I would add that there seems something fundamentally unfair in the CRA’s administration of proposed amendments to the Income Tax Act for the past ten years as if they were already law. A taxpayer is not able to challenge a decision by the CRA that the proposed amendments do not apply to the circumstances of the taxpayer. I emphasize, however, that I am expressing no view as to whether Mr. Edwards will benefit from the proposed amendments when and if they are enacted.
In another unusual twist to this decision the Court of Appeal reversed the Tax Court’s decision not to award the taxpayer his costs on the motion to adjourn:
[15] Mr. Edwards has also appealed the Tax Court’s refusal to award him his reasonable and proper costs of the motion. In an Order dated May 23, 2008, then Chief Justice Bowman allowed the Crown’s motion that the appeal be removed from the Informal Procedure Rules of the Tax Court to the General Procedure Rules. Pursuant to subsection 18.11(6) of the Tax Court of Canada Act, R.S.C. 1985, c. T-2, he ordered that the Crown should bear Mr Edwards’ reasonable and proper costs in the appeal.
[16] The Motions Judge gave no reasons for not awarding Mr Edwards his costs on the motion, despite the earlier Order of Bowman C.J. Counsel for the Crown conceded before this Court that the only basis on which the Motions Judge could properly have ordered that the parties bear their own costs that was consistent with Bowman C.J.’s Order, was that she did not consider Mr. Edwards’ costs in bringing the motion for an adjournment to be “reasonable and proper.”
[17] In the absence of reasons for a Motions Judge’s exercise of discretion, the Court may decide the issue de novo, and make the order that the Motions Judge should have made. I am not persuaded that Mr. Edwards’ motion for an adjournment was frivolous or otherwise improper, despite the length of time that it has taken to bring the Tax Court appeal this far. Accordingly, I would award costs of the motion in the Tax Court to Mr Edwards.
[1] 2012 FCA 330.