Words and Phrases - "in person"
Canada v. BCS Group Business Services Inc., 2020 FCA 205
The sole issue was the interpretation of the words “in person” in the expression “may appear in person”. In finding that the Tax Court lacked the authority, in proceedings instituted by the taxpayer (“BCS”) subject to the Tax Court of Canada Rules (General Procedure), to permit BCS to be represented by the (non-lawyer) individual (“Gagnon”) who was its sole shareholder, director and officer – so that the Tax Court erred in finding “that Mr. Gagnon personified BCS and that he was exercising BCS’s right to appear ‘in person’” (para. 64), Gauthier JA stated (at paras. 6):
… I have concluded that the legislator did not intend to oust the common law and civil law principle that a corporation, because of its very nature, cannot appear “in person” before a court. It can only be represented by an agent who is a distinct person than the corporation. In my view, the grammatical structure of the provision is not sufficient to reach a different conclusion when one considers the nature of the rights described in the paragraph, the clear statutory scheme and its object. By adopting detailed provisions dealing with representation in the Act, the legislator limited the TCC’s implied power to control who may represent the corporation in their courtroom, especially in proceedings subject to the General Procedure. ...
[T]he ordinary meaning of the words “in person” (as opposed to the legal concept of “person”), and the common law/civil law concept that a corporation cannot appear in person because of its very nature strongly suggest that under section 17.1, a party who is a corporation must be represented by counsel as defined by subsection 17.1(2).
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Other Legislation/Constitution - Federal - Tax Court of Canada Rules (General Procedure) - Section 30 - Subsection 30(2) | Rule 30(2) accorded unauthorized discretion re corporate representation to Tax Court judges | 468 |
BCS Group Business Services Inc. v. The Queen, 2018 TCC 120
The appellant brought a motion pursuant to Rule 30(2) of the Tax Court of Canada (General Procedure) Rules (the “Rules”) to have its sole shareholder, director and principal officer act on its behalf in its tax appeal. Subsection 17.1(1) of the Tax Court of Canada Act read:
A party to a proceeding in respect of which this section applies may appear in person or be represented by counsel, but where the party wishes to be represented by counsel, only a person who is referred to in subsection (2) shall represent the party.
In disagreeing with the finding in Masa Sushi and subsequent cases that Rule 30(2) conflicted with section 17.1, and the latter section did not allow a corporation to be represented other than by counsel, Miller J stated (at paras 5, 8):
A corporate taxpayer, like an individual taxpayer, has the choice to appear in person or by counsel. If it chooses to appear “in person,” how does it do that? It turns to Rule 30(2), which provides how a corporation may appear in person in the Tax Court of Canada – by means of leave of a judge of the Court with possible conditions. … Yes, there is common law jurisprudence to the effect that “in person” can only mean by the presence of a visible person … but there has been no such jurisprudence, until Masa Sushi, from the Tax Court of Canada. The jurisprudence referenced by Justice Graham is not founded in legislation that explicitly allows a corporation to appear in person.
…Surely we can give the drafters of the legislation and the drafters of the Rules credit for recognizing the uniqueness of the Court, unencumbered by the traditional common law findings of other Courts.
He went on to allow the appellant to appear in person through the individual on stipulated conditions.
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - General Concepts - Stare Decisis | prior decision not followed | 54 |