INCOME TAX |
Practice |
Canada v. Merchant (2000) Ltd.
A-606-00
2001 FCA 301, Sexton J.A.
10/10/01
4 pp.
Appeal from Motions Judge's decision allowing application for judicial review of requirement issued by Minister of National Revenue pursuant to Income Tax Act, s. 230(3) requiring respondent to keep such records, books of account as specified so that Minister could properly determine amount of taxes payable--Requirement based on report of auditor who attended at place of business--Auditor, who had primary responsibility for respondent's tax affairs, swore affidavit explaining unsatisfactory financial records, difficulties posed for accurately determining company's tax liability--If Minister made decision on basis of content of affidavit, would clearly have provided reasonable basis for conclusion--But affidavit not stating information contained therein before Minister--Letter informing respondent of requirement similarly not mentioning what was contained in auditor's report--On basis of material before Court, not possible to know whether information contained in report same as that contained in affidavit--Nothing in record indicating basis for Minister's decision to issue requirement--Motions Judge finding no evidence before him records inadequate--Appeal allowed--Motions Judge erred when said adequacy of records "jurisdictional question" on which Minister must be correct if decision to stand--Respondent could only obtain relief if established decision maker committed reviewable error, in this case error in exercise of discretion conferred on Minister by s. 230(3)--Would have had to demonstrate no material before Minister reasonably capable of supporting conclusion respondent failed to keep adequate records--In fact no evidence indicating basis of Minister's decision--Respondent, as applicant for judicial review, had burden of establishing Minister not having such evidence when exercised discretion to issue requirement--R. 317 permitting party to request material relevant to application in possession of tribunal whose order subject-matter of application--Respondent neither asked for material nor invoked r. 317--Cannot complain basis of Minister's decision not before Court--Because basis of decision not before Court, respondent unable to show discretion improperly exercised--Federal Court Rules, 1998, SOR/98-106, r. 317--Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1, s. 230(3).