A Judge’s Job Is Not a Minister’s Adviser

Tax law is no easy business. There are lots of complicated and seemingly conflicting rules, and tax litigation can come across as quite technical. Perhaps to add some animation to tax litigation proceedings, judges can add some clever wit buried in their decisions.

In 2015, a private corporation earning rental income was eligible for a dividend refund under subsection 129(1) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), but failed to do so due to health problems of its principal. It applied for relief from the Minister under the discretionary taxpayer relief professions in subsections 220(2.1) and (3).

When this relief by the Minister was denied, the Federal Court dismissed the application for judicial review, granting only some relief for interest. The court concluded it had no jurisdiction, as it was the exclusive jurisdiction of the Tax Court of Canada to interpret the Act.

The Federal Court of Appeal recently released its decision on the appeal in Bonnybrook Industrial Park Development Co. Ltd. v. Canada (National Revenue), with the majority finding that the Federal Court made a reviewable error,

[19] …The Tax Court’s jurisdiction is limited by statute, and in income tax matters its jurisdiction is generally limited to hearing appeals concerning the correctness of assessments. Its jurisdiction does not extend to judicial review of decisions of the Minister under discretionary relief provisions of the Act (The Minister of National Revenue v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250 (CanLII)2014 D.T.C. 5001, at paragraph 90). Accordingly, the Federal Court does have the jurisdiction to decide this judicial review application.

The more interesting part of the decision though is Justice Stratas’ dissent, which agrees with the analysis and conclusion of the majority on the jurisdiction issue.

Although both decisions shared concerns about the Minister’s performance on the application as lacking transparency and justification, Justice Stratas resisted interpreting the appropriate subsections for the Minister that she should have done in providing coherent reasons.

Instead, he indicated there is a limit to the participation of reviewing courts, who should still allow administrators to do their jobs,

[89] In this case I have a deeper concern: I cannot conclude that the Minister has grappled with this matter and done her job.

[90] Should I do the Minister’s job, interpret the subsections and write up the reasons the Minister should have written? No.

[91] My job is judicial review of the Minister, not judicial impersonation of the Minister. I do not work for the Minister. I am not the Minister’s adviser, thinker, or ghostwriter. I am an independent reviewer of what the Minister has done.

[92] In conducting review, I am entitled to interpret the reasons given by the Minister seen in light of the record before her. Through a legitimate process of interpretation, I can sometimes understand what the Minister meant when she was silent on certain things.

[93] But faced with a silence whose meaning cannot be understood through legitimate interpretation, who am I to grab the Minister’s pen and “supplement”her reasons? Why should I, as a neutral judge, be conscripted into the service of the Minister and discharge her responsibility to write reasons? Even if I am forced to serve the Minister in that way, who am I to guess what the Minister’s reasoning was, fanaticize about what might have entered the Minister’s head or, worse, make my thoughts the Minister’s thoughts? And why should I be forced to cooper up the Minister’s position, one that, for all I know, might have been prompted by inadequate, faulty or non-existent information and analysis?

[94] The Minister should do the job Parliament assigned to her and her alone: to look at the relevant provisions, interpret them, and decide upon their meaning with an explanation that permits meaningful review.

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