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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Federal Tax - Fairness

. Van der Steen v. Canada

In Van der Steen v. Canada (Fed CA, 2020) the Federal Court of Appeal considered the normal rule that administrative unfairness 'voids all' [Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC)], and does not apply it in the tax context:
D. Delay and fairness

[46] Mr. van der Steen has not established any delay or unfairness that warrants our intervention. Mr. van der Steen submits that there was a significant delay from the time when he submitted his notice of objection on May 28, 2008 to the date that the reassessment was confirmed on September 12, 2012. However, Mr. van der Steen did not have to wait until he received the notice of confirmation to file an appeal to the Tax Court. He could have done so after 90 days had elapsed from the date he had served his notice of objection (subsection 169(1) of the Act). Having chosen to wait for a response from the Minister rather than commence an appeal, he cannot now complain about the delay in having the matter heard by the Tax Court.

[47] As noted by this Court in Main Rehabilitation Co. v. Canada, 2004 FCA 403:
6 In any event, it is also plain and obvious that the Tax Court does not have the jurisdiction to set aside an assessment on the basis of an abuse of process at common law or in breach of section 7 of the Charter.

7 As the Tax Court Judge properly notes in her reasons, although the Tax Court has authority to stay proceedings that are an abuse of its own process (see for instance Yacyshyn v. Canada, 1999 D.T.C. 5133 (F.C.A.)), Courts have consistently held that the actions of the CCRA cannot be taken into account in an appeal against assessments.

8 This is because what is in issue in an appeal pursuant to section 169 is the validity of the assessment and not the process by which it is established (see for instance the Queen v. the Consumers' Gas Company Ltd. 1986 CanLII 4026 (FCA), 87 D.T.C. 5008 (F.C.A.) at p. 5012). Put another way, the question is not whether the CCRA officials exercised their powers properly, but whether the amounts assessed can be shown to be properly owing under the Act (Ludco Enterprises Ltd. v. R. [1996] 3 C.T.C. 74 (F.C.A.) at p. 84).
[48] It was the validity of the reassessment denying Mr. van der Steen’s claim for a non-refundable charitable donation tax credit based on his payment of $65,000 to CLES that was in issue before the Tax Court, not the actions of the Canada Revenue Agency or the Minister. His arguments related to delay and fairness are without merit.


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