http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/127843/index.do
Feng v. Canada (National Revenue) (January 20, 2016 – 2016 FC 66, Lafrenière P.).
Précis: The taxpayer was assessed for GST in 2009. In 2015 she wrote the Minister asking for an extension of time to file a notice of objection. The request was refused because it was outside the time limits for applying for an extension under the Excise Tax Act. Ms. Feng applied to the Federal Court to review that decision of the Minister. The Crown moved to strike the application on the basis that it was bereft of any possibility of success. The Prothonotary struck the application as an abuse of process and an impermissible collateral attack on the Minister’s decision. The Crown was awarded costs of $750 inclusive of disbursements and taxes.
Decision: The Prothonotary concluded that the application for judicial review was a form of impermissible collateral attack:
[10] In enacting sections 301 to 306, Parliament has provided a complete statutory framework for the exercise by a person of the right to dispute the validity of a tax assessment, all within clear and stringent timeframes. The essential character of the present application for judicial review is a collateral attack of the validity of the Minister’s assessment which is not only time-barred under the ETA, but also barred by section 18.5 of the FCA.
[11] Section 18.5 provides that, to the extent that a matter may be appealed under a statute, judicial review is not available. Pursuant to section 12 of the Tax Court of Canada Act, the Tax Court has exclusive original jurisdiction to hear and determines appeals relating to assessments of tax under the ETA, as well as applications for extensions of time under section 304 of the ETA.
[12] The fact that the Tax Court may not be able to grant any relief to the Applicant under subsection 304(1) because the statutorily prescribed time limits for filing a notice of objection or to seek an extension of time have expired does not allow the Applicant to circumvent the comprehensive system of tax assessments and appeals established by the Parliament. It is simply not open to the Applicant to indirectly challenge the Minister’s decision in this Court by mischaracterizing the decision as a denial under subsection 281(1) of the ETA.
[13] Being substantially in agreement with the written representations filed by the Respondent, and in particular the Respondent’s reply submissions, which I adopt and make mine, I conclude that the application should be dismissed on the grounds that it is bereft of any possibility of success. The application is an improper collateral attack of the Minister’s decision of August 25, 2015 and constitutes an abuse of process.
As a result the application was struck with costs to the Crown of $750, inclusive of disbursements and taxes.
Comment: This decision has odd resonances with the ConocoPhillips decision blogged very recently on this site.