Date:
20131008
Docket:
T-1304-11
Citation:
2013 FC 1015
Ottawa, Ontario,
October 8, 2013
PRESENT: The
Honourable Madam Justice McVeigh
BETWEEN:
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ALEX KOTEL
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
order concerns an application for judicial review of a decision made by Canada
Revenue Agency (CRA), Director of the Ottawa Tax Services Office, Janet de
Kergommeaux, dated June 16, 2011, where she denied the Applicant further relief
from interest and penalties pursuant to subsection 220(3.1) of the Income
Tax Act, RSC 1985, c 1 (5th Supp) (ITA).
I. Facts
[2]
Between
1999 and 2002, the Applicant earned income in the United States for 45 to 50
weeks per year. On advice from an accountant in the United States, he did not
file tax returns in Canada for the 2000 and 2001 taxation years.
[3]
On
April 3, 2003, the Applicant was assessed late filing penalties for the 2000
tax year of $9,655.03 and for the 2001 tax year of $3,322.60.
[4]
In
that assessment, the Applicant was also reassessed for interest and tax arrears
for the following years and in the following amounts :
•
1999-
$3,060.47;
•
2000-
$28,254.13;
•
2001-
$6,544.62; and
•
2002-
$350.42
[5]
On
June 2, 2003, the Applicant filed Notices of Objection to the reassessments for
each of the years between 1999 and 2002.
[6]
On
January 22, 2008, the Applicant made a request to CRA for taxpayer relief for
each of the years of 1999 to 2002, for the interest and arrears as well as the
late filing penalties. The reasons supporting his request were financial
hardship or inability to pay and CRA delay.
[7]
The
Appeals officer, Thomas Scott, recommended cancellation of the following
arrears of interest for the 1999 to 2002 taxation years at issue. He determined
November 17, 2004 as the effective date of the interest relief because that is
when the Applicant provided substantially all of the requested information in
order for his Notice of Objection to be reviewed:
•
1999
cancellation of interest accruing between November 17, 2004 to November 13,
2007;
•
2000
cancellation of interest accruing between November 17, 2004 to November 13,
2007;
•
2001
cancellation of arrears interest accruing between November 17, 2004 to November
13, 2007; and
•
2002
cancellation of arrears interest accruing between November 17, 2004 to February
1, 2008.
[8]
The
late filing penalties were not cancelled. The late filing penalties were for T1
Returns not filed within the legislated time period for the taxation years 2000
and 2001. As the penalties were related to the late filing of his 2002 and
2001 tax returns, CRA found that the penalties had nothing to do with CRA delay
in reviewing the Applicant’s Notices of Objection. Thus the CRA determined the
Applicant was not entitled to relief on the penalties.
[9]
The
acting Chief of Appeals, Suzanne Dionne agreed with the recommendation to waive
a portion of the interest. The Applicant was notified he was successful in
obtaining partial taxpayer relief on February 4, 2008, when the CRA reduced the
interest owed by the Applicant by $38,156.75.
[10]
Cathy
Mitchell, Collections officer with the Taxpayer Services and Debt Management
(TSDM) Taxpayer Relief Team, then reviewed the Applicant's request for relief
on the basis of financial hardship. The Applicant completed the Financial
Statement that was his household income and expenses and from that and his file
Cathy Mitchell prepared a Fairness Request Summary of Facts Report. She
recommended to Ms. J. Kingdon that no further relief for financial hardship be
granted. On May 8, 2008, Ms. J. Kingdon, on behalf of the Assistant Director,
wrote the Applicant and determined that no further relief be granted on the
basis of financial hardship.
[11]
The
Applicant repaid the outstanding tax debt, interest and penalties of $149,779.92
on June 23, 2008. Therefore no further interest or penalties are accruing.
[12]
On
December 4, 2008, the Applicant made another request for taxpayer relief for
each of the years 1999 to 2002 on the basis of extraordinary circumstances, CRA
error, CRA delay and financial hardship. The request included medical
information concerning his February 2008 diagnosis with sinus cancer.
A. First Administrative Review
i. First
Level Review
[13]
The
Peterborough Office assigned Jean Marie Hochu to review the December 4, 2008
request for extraordinary circumstances. The officer completed a Taxpayer
Relief Report in which she denied the relief as the Applicant’s diagnosis with
cancer did not occur until February 2008 and would not have affected the last
taxation year in question, which was 2002. The recommendation was agreed with
by the Director of the Peterborough Tax Services Office, Michael Eves.
[14]
A
letter dated March 3, 2009, regarding a First Level Review was sent to the
Applicant whereby his request for taxpayer relief under extraordinary
circumstances was denied. The letter went on to explain, however, that the
Applicant’s December 4, 2008 request for taxpayer relief was being forwarded
for a second level review and re-examination for CRA error and delay, and
financial hardship.
ii. Second
Level Review
[15]
Jason
Andrus of the Peterborough Tax Services Office did an administrative review and
recommended the Applicant’s request for relief be denied on the financial
hardship. Kathryn Van Vliet reviewed the decision on the basis of CRA delay,
CRA error, and extraordinary circumstances and she recommended it be denied.
She then prepared a Taxpayer Relief Report which included her assessment and
Jason Andrus’s and provided it to Michael Eves, Assistant Director of the
Peterborough Tax Services Office. On March 27, 2009 he agreed with the
recommendation and determined that that no further relief would be granted, and
invited the Applicant to seek judicial review of the CRA’s review of the Applicant’s
request for relief.
[16]
On
April 27, 2009, the Applicant made a Judicial Review (T-666-09) application of
the March 27, 2009 decision by Michael Eves, and contested the remaining
interest and penalties owed. Upon consent of the parties, Chief Justice (Lutfy
CJ as he then was), allowed the application and referred the matter back on
March 4, 2010, to the CRA “for determination forthwith at the second level by
persons not previously involved in the matter.”
B. Second Administrative Review
[17]
Jennifer
Henry of the Ottawa Office was assigned to do a second administrative review of
the decision. In correspondence dated May 20, 2010, she requested further
information from the Applicant based on his current circumstances to support
his position that relief should be granted . She enclosed a blank Income and
Expense Disclosure Statement with a letter that said to fill it out based on
his family income and expenses. He was also told that the financial hardship
would be reviewed separately by the TSDM Taxpayer Relief Team.
[18]
On
June 18, 2010, the Applicant provided the Income and Expense Disclosure
Statement, various documents, and a response in support of his request for
further Taxpayer relief. In his response, he expressed his displeasure with CRA
collections officer, Ms. Mitchell, and “her asset stripping tone”, as well as
other complaints about CRA's previous denials of the relief.
[19]
Jennifer
Henry reviewed the request for taxpayer relief on the basis of extraordinary
circumstances, CRA error and delay as submitted by the Applicant. The financial
hardship basis for relief was reviewed by Irene Chateauvert of TSDM Taxpayer
Relief Team.
[20]
Jennifer
Henry and Irene Chateauvert both reviewed the Applicant’s request in accordance
with the Canada Revenue Agency, Information Circular, IC07-1, “Taxpayer Relief
Provisions” (May 31, 2007) (Taxpayer Relief Provisions).
[21]
The
financial hardship material requested by Jennifer Henry and provided by the
Applicant was turned over to Irene Chateauvert as it related to the financial
hardship aspect of the request for relief.
[22]
With
regards to financial hardship, Irene Chateauvert reviewed the Applicant’s CRA
file, as well as the information provided by the Applicant concerning financial
hardship. She completed a Taxpayer Relief Fact Sheet and recommended that
further taxpayer relief be denied as:
•
the
outstanding debt had already been paid;
•
the
Applicant had on May 28, 2010 a net worth of $295,851.58;
•
the
Applicant has a rental property that could generate additional monthly income.
[23]
Jennifer
Henry then did her assessment based on CRA error, administrative delay and
extraordinary circumstances and completed a Taxpayer Relief Report. A full
timeline regarding the Applicant is attached to the Affidavit of Jennifer Henry.
[24]
Jennifer
Henry summarized the Applicant’s request and analyzed the information including
the review and recommendation of Irene Chateauvert’s financial assessment. She
recommended no further relief because of the following:
•
the
taxpayer had already received taxpayer relief because of CRA delay by way of interest
waived for the period. Thus the outstanding interest could not be attributed
to CRA delay;
•
the
penalties’ for late filing do not relate to CRA delay;
•
the
request on the basis of a CRA error is that he made an error in filing late
which is not a CRA error;
•
the
diagnosis of sinus cancer was in 2008 and did not relate to the taxation years
in question.
[25]
The
report and the documents relied on by both Jennifer Henry and Irene Chateauvert
were provided to the Team Leader, Michelle McIver; Assistant Director of the
Ottawa Tax Services Office, Annie Schwarz and then to Janet de Kergommeaux, the
Director of the Ottawa Tax Services Office. She had the delegated authority to make
the final decision. Janet de Kergommeaux agreed with the recommendation to deny
further relief and she denied the taxpayers request in a letter dated June 26,
2011.
[26]
The
decision of Janet de Kergommeaux, Director of Ottawa Tax Services dated June
26, 2011, is the subject of the present application for judicial review.
II. Issue
[27]
Is
the decision of the Minister of National Revenue dated June 16, 2011, to deny
the Applicant the penalty and interest relief he sought under subsection
220(3.1) of the ITA reasonable?
III. Standard
of review
[28]
The
power afforded to the Minister under subsection 220(3.1) of the ITA to grant
taxpayer relief is discretionary. The standard of review to be applied to the
Minister’s exercise of this discretion is reasonableness (Canada (Revenue Agency) v Telfer, 2009 FCA 23, at para 24). This court should
not interfere with this discretionary decision if it is reasonable (Dunsmuir
v New Brunswick, 2008 SCC 9, at para 47).
IV. Argument
and Analysis
[29]
The
Applicant’s submissions have been grouped under headings for greater clarity. Then
the analysis of the decision was grouped to mirror the Applicant’s headings.
A. Applicant’s Submissions
i. Household Income
[30]
To
make the decision on the Applicant’s request for relief, the CRA requested the
Applicant’s household financial statement. The Applicant submits that the
financial hardship analysis should not have included his wife’s income and
instead, should only have looked at his income. The Applicant strenuously
objects to CRA using household income as he submits the tax debt and financial
hardship are his alone.
[31]
The
Applicant’s position is that the CRA is wrong in using the full amount of
assets as he really only owns half as he is married and his wife owns the other
half so his net worth is incorrect. He submits if his wife’s share of property
is removed from the calculation, then he does not have a positive net worth and
he has zero income because of his health. Consequently, he submits that using
this calculation he would qualify for hardship.
ii.
Date Used
[32]
The
Applicant submits that the date of November 17, 2004 used by the CRA in
granting the initial interest relief is both random and wrong.
[33]
He
submits that March 17, 2003 is a date that can be justified as it is the date
when he gave authority to the CRA to speak to his accountant. The Applicant
submits he previously provided financial information in the MYOB (Mine Your Own
Business software accounting package) format of a profit and loss statement, on
March 17, 2003. CRA did not accept it for a T1 Return and he submits that he
should not have been made to hire an accountant to provide it in a format
specified by CRA. He say that this time period should attributed to the CRA
delay and thus the interest accrued between March 17, 2003 and March 17, 2004
should also be waived.
iii.
Penalties for Late filing
[34]
The
Applicant worked the tax years of 1999 to 2002 in the United States and was there for approximately 45 to 50 weeks of the year. He sent money to his
family to support his wife and three children still residing in Canada. The Applicant submits he followed his United States accountant’s advice and filed
his taxes in the United States and not in Canada. His argument is that the
penalties should be waived as it was the accountant’s error. The Applicant
submitted that surely the penalty for the late filing should be waived when the
totality of the circumstances are looked at.
[35]
The
Applicant’s view is that once he was red flagged by the CRA for late filing
that they started looking at every tax year of his and now hound and harass him
as well as his wife and children with audits.
iv. Collections & Revenue
Property
[36]
The
Applicant did submit a payment plan to the collections officer and she turned
him down as she found he had assets that could be sold or mortgaged to pay the
debt.
[37]
He
is angry that CRA did not care that he had to cash in his RRSP’s to pay the
assessment or really they did not care how he came up with the “$160,000.00”
[sic] and were ruthless. The Applicant in his Memorandum says that “Financial
hardship was created by borrowing $149,779.92 on June 25, 2008…..This mortgage
has creating a long term debt in excess of 25Yrs to discharge.”
[38]
The
documentation shows that the Applicant refinanced a rental property to pay the
debt in full.
[39]
The
CRA collections agents garnished his property rents. This garnishment made the
Applicant very unhappy because the garnishment documents disclosed his social
insurance number (SIN) to his renters, of which many are on welfare. The
Applicant is very unhappy about them having his SIN. He submitted that the
officer saying he was a slum landlord as well as other comments amount to bad
faith.
[40]
The
Applicant submitted that the CRA’s determination that the revenue property was
being under utilized and could earn more income is wrong. The Applicant says
that the rental income of $6,000.00 was for the year not the month.
[41]
The
Applicant took great offence at the collections officer saying he “claims 3
children in university yet nothing regarding same on I&E”. He says clearly
his wife paid for the children to attend private school and now University as
he has no income and he is not hiding that fact.
[42]
He
further submits that he made a payment on November 5, 2002 in the amount of
$6201.31 which has not been offset against his amount owing.
v. Medical Condition
[43]
The
Applicant submitted that his medical condition was not fully considered as it
is quite obvious that he has had numerous serious surgeries. Though the actual
diagnosis of cancer came in February 2008 (stated as mid April in the
Respondent’s Record at page 66) at the Toronto General Hospital and Princess
Margaret Hospital (University Health Network). His submission was that he had
been complaining of symptoms before February 2008, starting in mid 2007 and
that the hospital in Belleville, Ontario could not diagnosis it. The Applicant
received radiation treatment and cranial surgery (December 5, 2008) and then
again more extreme surgery in November 2012. The Applicant continues his
treatment for the cancer.
[44]
The
Applicant confirmed at the hearing that he does not suffer mental illness or
incapacity as a result of the brain surgery. Though he said it has affected his
whole body and he now has a lethargic look on life.
[45]
In
initial documentation submitted by the Applicant dated December 4, 2008 (at
page 35 of the Respondent’s Record), he says his diagnosis of cancer makes his
“financial outlook for 2009 to be even more dire”.
[46]
The
Applicant in the document submitted June 18, 2010 says that his illness has
“incapacitated me to such an extent that it affected my employability and
income and now I am being discriminated by potential employer because of my age
to gaining meaningful employment.” He had submitted to CRA that since losing
his job he has only been able to secure odd jobs with limited income and relies
on his wife to support him.
vi. Independent Evaluation
[47]
The
Applicant submitted the CRA did not do an independent analysis of his complaint.
Specifically he submits that where 11 people doing 4 independent reviews arrive
at the same conclusion regarding the date, it amounts to evidence that the
Applicant’s submissions were not fully considered. The Applicant believes that
once a conclusion is in the system the CRA just keeps doing the same thing with
no independent analysis.
B. Respondent’s Submissions
[48]
The
Respondent pointed out that a Taxpayer Relief Sheet was completed based on the
information provided by the Applicant. This included:
•
The
Applicant had already paid the outstanding tax debt, interest and penalties;
•
The
Applicant has a net worth of $295,851.58 as of May 28, 2010;
•
The
Applicant owns a rental property which appears to have the ability to generate
additional monthly income.
[49]
The
Minister had previously granted relief due to CRA delay. The decision maker
denied penalty relief because it determined the Applicant’s submissions did not
indicate any circumstances that prevented him from filing his 2000 and 2001
income tax returns and that incorrect advice from a United States accountant is
not a CRA error.
[50]
The
Respondent submits that subsection 220(3.1) of the ITA grants broad relief and
that the Minister exercised their power reasonably as they considered the
Applicant’s circumstances.
C. The Law
[51]
Subsection
220(3.1) of the ITA (see Annex A of this decision) confers a discretion upon
the Minister of National Revenue to waive or cancel all or any portion, of any
penalty or interest otherwise payable under that Act by a taxpayer.
[52]
A
non-exhaustive list of factors that the CRA officer is to consider when
assessing applications for tax relief are set out in the CRA, Taxpayer Relief
Provisions.
[53]
The
situations where the Minister may grant relief from Penalty and Interest are
found at paragraph 23 of the Provisions and include both (1) extraordinary
circumstances, and (2) inability to pay or financial hardship.
[54]
Details
of what are “extraordinary circumstances” are defined at paragraph 25 “….they
result from circumstances beyond a taxpayer’s control. Extraordinary
circumstances that may have prevented a taxpayer from making a payment when
due, filing a return on time”. Examples of what amounts to extraordinary
circumstances include but are not limited to
•
natural
or man-made disasters such as, flood or fire;
•
civil
disturbances or disruptions in services, such as a postal strike;
•
a
serious illness or accident; or
•
serious
emotional or mental distress, such as a death in the immediate family.
[55]
Situations
that amount to inability to pay and financial hardship are also described in
the Taxpayer Relief Provisions. Specifically, the Minister may consider
cancelling interest the following situation:
•
When
payment of the accumulated interest would cause a prolonged inability to
provide basic necessities (financial hardship) such as food, medical help,
transportation, or shelter, consideration may be given to cancelling all or
part of the total accumulated interest.
[56]
However,
when considering requests to cancel penalties, in particular, the Provisions
are clear that inability to pay or hardship alone is not sufficient, but
requires the presence of an extraordinary circumstance as described above
(Taxpayer Relief Provisions at paragraph 28). Thus to cancel a penalty for
financial hardship requires an Applicant to demonstrate that the extraordinary
circumstance existed and resulted in such extreme financial difficulty which
left the Applicant with insufficient means to provide for their basic
necessities outlined above.
[57]
Where
“extraordinary circumstances” exist to justify a consideration of fairness
relief, then paragraph 33 of the Taxpayer Relief Provisions enumerates four
factors the Minister will consider in making its decision:
•
whether
or not the taxpayer has a history of compliance with tax obligations;
•
whether
or not the taxpayer has knowingly allowed a balance to exist on which arrears
interest has accrued;
•
whether
or not the taxpayer has exercised a reasonable amount of care and has not been
negligent or careless in conduction there affairs under self-assessment system.
•
whether
or not the taxpayer has acted quickly to remedy any delay or omission
D. Decision
i. Household Income
[58]
I
find the decision maker reasonably considered the Applicant’s family income
when making the discretionary decision to refuse tax liability relief. As
required by the Taxpayer Relief Provisions, the decision maker looked at if the
Applicant, after paying the debt, could provide the basic necessities as set
out in paragraph 27(c) of those provisions. She determined, with his wife’s
income, his rental property income and net worth that the Applicant would be in
a position to support his basic necessities. I agree and consider the decision
maker’s inclusion of household income amounts to a reasonable application of
the Taxpayer Relief Provisions as described.
[59]
The
decision maker in her reasons said:
These are unfortunate events: however this is not
considered an extraordinary circumstance under the Taxpayer Relief Provisions.
According to the financial information you provided to the CRA, your net worth
remains positive and household income appears sufficient to support your basic
needs.
[60]
The
submission that the Applicant lost his job and can only find odd jobs, was also
addressed in the decision:
These are unfortunate events; however this is not
considered an extraordinary circumstance under the Taxpayer Relief Provisions.
According to the financial information you provided to the CRA, your net worth
remains positive and household income appears sufficient to support your basic
needs.”
[61]
In
her reasons the decision maker considered that the Applicant has three children
attending University in Ontario and Quebec and found :
It is commendable that you would like to support
your children in their educational endeavours; however, the costs of providing
post-secondary education is not considered a basic necessity, and therefore is
not considered in determining financial hardship for the purposes of the
Taxpayer Relief Provisions.
[62]
The
decision maker clearly articulated in her reasons based on the Taxpayer Relief
Provisions why she found the Applicant did not meet the criteria for relief
under inability to pay or financial hardship.
ii. Date Used
[63]
This
was an argument that the Applicant raised only at the hearing and not
specifically in his materials. Though not articulated as the wrong date before
the decision maker, the Applicant submitted he had given the necessary information
to the CRA, but that CRA was at fault for not accepting the information in the
financial form he provided. Therefore the CRA delay started before November 17,
2004.
[64]
I
find the date of November 17, 2004 is not an arbitrary date that the CRA chose
to grant the initial interest relief on. Rather, November 17, 2004 was the
effective date of the interest relief because that is when the Applicant
provided substantially all of the requested information in order for his notice
of objection to be reviewed. The decision maker reviewed the Applicant’s entire
file and also used the date of November 17, 2004 to say that the cancellation
of the interest that was already given was the correct amount due to CRA delay and
that no more was warranted.
iii. Penalties for Late
Filing
[65]
In
considering the factors within the Taxpayer Relief Provisions by which the
fairness provisions operate, any errors attributable to third parties are not
considered extraordinary circumstances (Quastel v Canada Revenue Agency,
2011 FC 143 at para 29). Thus the advice received from the United States accountant does not qualify as an extraordinary circumstance which would justify
relief of his tax liability.
[66]
The
decision maker addressed the Applicant’s complaint that he had to hire an accountant.
Her reasoning was:
It is ultimately your responsibility and decision to
determine whether you need to acquire the services of an accountant or lawyer.
This does not fall within the Taxpayer Relief Provisions.
[67]
In
considering the factors within the Taxpayer Relief Provisions by which the
fairness provisions operate, any errors attributable to third parties are not
considered extraordinary circumstances (Quastel v Canada Revenue Agency,
2011 FC 143 at para 29). Thus the advice received from the United States accountant does not qualify as an extraordinary circumstance which would justify
relief of his tax liability.
[68]
In
order to qualify for taxpayer relief under the legislation, an extraordinary
circumstance must be presented by the taxpayer to indicate that he was
prevented from filing his tax returns. The decision maker’s conclusion that
based on the facts this did not occur is reasonable.
iv.
Collections & Revenue Property
[69]
The
decision maker addressed the collection officer’s refusal to accept his payment
plan as follows:
…The payment plan that you presented to the
Collections Officer in May 2008 was not accepted, as the plan you submitted
proposed to only pay the tax liability of approximately$87,000 and not the
entire balance that was outstanding including interest and penalties. The
amount you proposed to pay represented only 58% of the total balance that was
outstanding, therefore it was not accepted. If you had presented a plan that
would have covered the entire balance, this plan may have been accepted and the
interest may have stopped accruing from the date that payments commenced, as
long a payment were made on time and compliance with the ITA was maintained.”
v. The Payment
[70]
The
decision maker explained in the decision that:
… a payment of $6,201.31 November 5, 2002 and this
payment was applied against the debt that was outstanding for the 1999 taxation
year. When you initially filed your return for the 1999 taxation year, you
received a refund and were later reassessed on December 4, 2000, resulting in
an amount owing of $5,290.25, including $256.59 of arrears interest. This
balance was requested to be paid several times over approximately two years
until it was paid on November 5, 2002. The payment noted above was applied to
this balance outstanding and was not absorbed as an interest payment.
[71]
According
to the Provisions, when making a request for tax payer relief under financial
hardship, taxpayers have the burden of providing the CRA with a complete and
accurate description of their circumstances. This includes providing “a
meaningful payment arrangement that covers at least the tax and the penalty” (see
Taxpayer Relief Provisions Guideline at paragraph 32(g)). The collections
officer found that the Applicant had not submitted such a plan covering the
full amount of interest and penalties owed. Where the Applicant has failed to
provide this information required to the collections officer, it is not
unreasonable of the decision maker to uphold the collection officer’s decision
that was based on the information the Applicant provided. The decision maker
did not give the negative comments any weight.
[72]
The
collections officer providing the Applicant’s SIN number to his tenants was not
before the decision maker, and consequently is not at issue in this judicial
review.
v. Medical Condition
[73]
The
Applicant has a very compelling medical story and has exhibited great courage
in his fight to stay alive. However, the decision maker’s finding that the tax
years in question were not affected by this medical condition since his
condition arose after the fact is reasonable.
[74]
When
deciding the extraordinary circumstances the decision maker said, in her
decision of June 16, 2011:
In regard to extraordinary circumstances, you
submitted documentation to show that you were diagnosed with sinus cancer in
April 2008 and that your treatment started shortly thereafter and is still
ongoing. It is unfortunate that you are dealing with this illness; however, I
regret to inform you that since your illness occurred after al the tax returns
in question had been filed; your illness did not prevent you from meeting your
filing obligations.
…
Your diagnosis and treatment came about shortly
after the Appeals reassessments in November 2007. After these reassessments Collections
was in contact with you on a frequent basis in trying to arrange for collection
of the balances outstanding. You presented a payment plan to the collections
officer dated May 3, 2008. The final balance outstanding was paid in full on
June 23, 2008. You had several medical appointments beginning in April 2008. It
is understandable that you were stressed by your diagnosis; however, no record
of your illness is mentioned until the taxpayer relief request dated December
4, 2008. This issue was also addressed previously in this letter under
Extraordinary Circumstances.
[75]
The
Applicant’s inability to earn income was considered by the decision maker and
she determined that no further relief would be granted.
[76]
While
the decision given to the Applicant may seem harsh given his current condition,
the role of a reviewing judge on judicial review is limited to determining
whether the decision falls within the range of possible and acceptable outcomes
(Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, at para 59
(Khosa)). In this situation, I find the decision maker’s application of
the facts to the criteria for granting relief is reasonable when the timeline
is considered.
vi. Independent Evaluation
[77]
The
fact that all of the decision makers came to the same conclusion does not mean
(as the Applicant submits) that they are all wrong. In this instance, the
decision maker requested from the Applicant updated household financial
information that would support his request for relief. I do not see in the many
decisions made at the various levels that the CRA officers did not look at the
matter with fresh eyes and make an independent review. Thus I find the
Applicant has failed to establish that no independent review was provided and I
find the decision maker was reasonable in the exercise of their discretion.
V. Conclusion
[78]
The
taxpayer had cancellation of the following arrears of interest for:
•
The
taxation years 1999 (Cancellation of interest for the period November 17, 2004
to November 13, 2007);
•
Year
2000 (Cancellation of interest for the period November 17, 2004 to November 13,
2007);
•
2001
(Cancellation of arrears interest November 27, 2004 to November 13, 2007;
•
2002
(Cancellation of arrears interest assessed November 17, 2004 to February 1,
2008).
[79]
This
amounted to interest cancelled in the amount of $39,886.55. The late filing
penalties were for T1 Returns not filed within the legislated time period for
the taxation years 2000, 2001 however remained.
[80]
Though
this may not have been the decision that I reached, but on judicial review,
where the process and the outcome fit comfortably within the principles of
justification, transparency and intelligibility, it is not open to me as a
reviewing judge to substitute my own view of the preferred outcome (Khosa,
above, at para 59).
[81]
Here
the decision maker followed a transparent process and the reasons are clear and
detailed. While the Applicant may not agree with the decision maker, he has
been given justification as to why the decision maker decided that way.
[82]
Applying
the reasonableness standard, I find that the decision amounts to a reasonable
exercise of discretion. Consequently, I will dismiss this application.
[83]
The
facts of this case do not justify that costs should be awarded against the
Applicant. There will be no costs awarded.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is dismissed;
2.
No
costs are awarded.
"Glennys L.
McVeigh"
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