http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/72948/index.do 
Abrametz v. The Queen (July 17, 2014 – 2014 TCC 227) is a very odd species of tax litigation. Mr. Abrametz had been assessed GST under the director’s liability provisions of the
Excise Tax Act. He was unsuccessful in the Tax Court but successfully appealed to the Federal Court of Appeal which directed the Minister to reassessment on the basis that certain payments were not subject to GST:
[1] Peter Abrametz was assessed under subsection 323(1) of the
Excise Tax Act (the “ETA”) as the sole director of Mada Construction Company Ltd. in respect of Mada’s outstanding GST, interest and penalties (the “Original Assessment”). Mr. Abrametz appealed the Original Assessment to this Court. His sole ground of appeal was that the underlying amount of GST, interest and penalties allegedly owed by Mada had been incorrectly calculated by the Minister of National Revenue. Justice Sheridan dismissed Mr. Abrametz’s appeal. Mr. Abrametz appealed that dismissal to the Federal Court of Appeal. His appeal was allowed and the matter was referred back to the Minister for reassessment on the basis that six amounts totalling $166,250 “were loan proceeds and inter-bank transfers, none of which should have been subject to GST”. Neither the Respondent nor Mr. Abrametz appealed the decision of the Federal Court of Appeal. The Minister reassessed Mr. Abrametz with the intention of giving effect to the decision of the Federal Court of Appeal (the “Resulting Reassessment”). Mr. Abrametz has now appealed the Resulting Reassessment to this Court.
[Footnotes omitted]
The Crown raised a number of technical objections to his new notice of appeal with the ultimate aim of having it struck in its entirely:
[2] The Respondent seeks an order under Rule 53 of the Tax Court of Canada Rules (General Procedure) striking out paragraphs 8, 9, 13(i), 13(iv), 14, 16 and 17 of the Notice of Appeal on the basis that Mr. Abrametz is estopped from arguing that the underlying assessment against Mada was incorrect, that he was duly diligent or that the pre-conditions under subsection 323 of the ETA were not met at the time that the Original Assessment was issued. In the alternative, the Respondent seeks an order striking out those paragraphs on the basis that allowing Mr. Abrametz to make those arguments would amount to an abuse of process.
[3] The Respondent also seeks, pursuant to Rule 58(1)(a), rulings that[3]:
(a) the Minister was not required to repeat any steps contained in section 323 when he issued the Resulting Reassessment;
(b) the Resulting Reassessment made the changes ordered by the Federal Court of Appeal; and
(c) the issues raised by Mr. Abrametz with respect to the payment of his tax debt or that of Mada are outside the jurisdiction of this Court.
[4] The Respondent also seeks leave to introduce evidence on the Rule 58 Motion.
[5] Finally, if I find in favour of the Respondent on the Rule 53 and 58 Motions, the Respondent seeks an order dismissing the Appeal on the grounds that there are no issues left to be tried.
[Footnote omitted]
In a very careful decision the court concluded in favour of the Crown on all of its arguments except on the issue of dismissing the appeal. In that case it held that the Crown was essentially precluded from making that argument since they had, with leave of the court, adduced evidence on the motion:
[47] The only arguments that have not been struck from the Notice of Appeal as a result of the estoppel issue are the Resulting Reassessment Argument, the Resulting Reassessment Pre-Conditions Argument and the Payment Argument. The foregoing determination of fact has made it clear that Mr. Abrametz has no hope of succeeding on the Resulting Reassessment Argument and the foregoing determinations of law have made it clear that he has no hope of succeeding on the Resulting Reassessment Pre-Conditions Argument and the Payment Argument.
[48] As a result, the Respondent would like me to dismiss the Appeal. The Motion does not state the Rule pursuant to which the Respondent wants me to do so. Presumably the Respondent is relying on Rule 58(1)(b) as it read at the time the Motion was brought. That Rule allows me to dismiss an appeal if it discloses no reasonable grounds for appeal. However, Rule 58(2)(b) states that no evidence may be lead on a motion under Rule 58(1)(b). The Respondent led evidence in support of its motion for a determination of a question of fact. It would be a perversion of the Rules if, having made a determination of fact that favours the Respondent using evidence put forward by the Respondent, I now concluded that I could, relying on my determination of fact (as opposed to the evidence that lead to it) find that Mr. Abrametz had no reasonable grounds for appeal and dismissed his appeal. Accordingly, the Respondent’s Motion to have the Appeal dismissed is denied.
Notwithstanding his somewhat accidental success on the motion the court went on to caution Mr. Abrametz about the risks of pursuing the appeal further:
[49] Despite the foregoing, I caution Mr. Abrametz in the strongest terms possible that, if, in the face of my conclusion that he has no chance of succeeding at trial, he nonetheless chooses to take this matter to trial, I anticipate that the Judge that hears the trial will give significant weight to that poor choice when awarding costs.
The court awarded costs on the motion to the respondent and invited the parties to agree upon costs or, failing that, to make submissions as to costs within 60 days of the date of the order. It also cautioned Mr. Abrametz as to its views on costs of the motion:
[52] In endeavouring to reach an agreement, Mr. Abrametz may wish to bear in mind the fact that I consider this Motion to have been made unnecessarily complex by the confusing nature of the Notice of Appeal, his baseless objection to the Respondent introducing non-controversial evidence by way of affidavit and his obstinate refusal to acknowledge that the Resulting Reassessment was issued in accordance with the decision of the Federal Court of Appeal. Unless Mr. Abrametz is able to convince me that I am wrong, any decision that I am required to issue in respect of costs will reflect those views.