Federal Court of Appeal Decisions

Decision Information

Langlois v. Canada

Court (s) Database Federal Court of Appeal Decisions
Date 2009-03-10
Neutral citation 2009 FCA 69
File numbers A-299-07

Decision Content

Date: 20090310

Dockets: A-299-07

A-300-07

 

Citation: 2009 FCA 69

 

Present:          NOËL J.A.

A-299-07

BETWEEN:

ROBERT LANGLOIS

Appellant

and

HER MAJESTY THE QUEEN

Respondent

 

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A-300-07

BETWEEN :

RALPH E. FARAGGI

Appellant

and

HER MAJESTY THE QUEEN

Respondent

 

Dealt with in writing without appearance of the parties.

 

Order delivered at Ottawa, Ontario, on March 10, 2009.

REASONS FOR ORDER BY:                                                                                           NOËL J.A.

 

Date: 20090310

Dockets: A-299-07

A-300-07

 

Citation: 2009 FCA 69

 

Present:          NOËL J.A.

 

A-299-07

BETWEEN:

ROBERT LANGLOIS

Appellant

and

HER MAJESTY THE QUEEN

Respondent

 

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

A-300-07

BETWEEN :

RALPH E. FARAGGI

Appellant

and

HER MAJESTY THE QUEEN

Respondent

 

 

REASONS FOR ORDER

 

NOËL J.A.

 

[1]               These reasons dispose of two applications brought pursuant to Rule 369 of the Federal Courts Rules, SOR/98-106 for a stay of the judgements rendered by this Court on January 12, 2008 dismissing the appellants’ respective appeals from judgements of the Tax Court of Canada which upheld the validity of assessments issued against each of the appellants.

 

[2]               The applications are brought pursuant to section 65.1 of the Supreme Court Act, R.S.C. 1985, c. S-26, which provides in part:

Stay of execution — application for leave to appeal

65.1 (1) The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate.

Additional power for court appealed from

(2) The court appealed from or a judge of that court may exercise the power conferred by subsection (1) before the serving and filing of the notice of application for leave to appeal if satisfied that the party seeking the stay intends to apply for leave to appeal and that delay would result in a miscarriage of justice.

 

Demande d’autorisation d’appel

65.1 (1) La Cour, la juridiction inférieure ou un de leurs juges peut, à la demande de la partie qui a signifié et déposé l’avis de la demande d’autorisation d’appel, ordonner, aux conditions jugées appropriées, le sursis d’exécution du jugement objet de la demande.

Pouvoir de la juridiction inférieure

(2) La juridiction inférieure ou un de ses juges, convaincu que la partie qui demande le sursis a l’intention de demander l’autorisation d’appel et que le délai entraînerait un déni de justice, peut exercer le pouvoir prévu au paragraphe (1) avant la signification et le dépôt de l’avis de demande d’autorisation d’appel.

 

 

[3]               The two applications are framed in identical terms. The full text of the Notice of Motion reads as follows:

 

PLEASE TAKE NOTICE that for the reasons set out in the Petitioners’ affidavits and the Affidavits of Documents attached hereto, Petitioners request a complete or partial suspension of the execution of the Judgment rendered by the Federal Court of Appeal on December 12th, 2008 and of the tax assessments, until such time as the Supreme Court has ruled on the Motion for Leave to Appeal that is presently pending before that Court.

 

 

[4]               Both the appellants assert in the affidavit filed in support of their respective application:

 

…

 

Revenue Canada has refused any relief at this point despite a request made for partial release of funds to enable me to exercise my right to request leave to appeal to the Supreme Court of Canada;

 

I ask that $150,000 be liberated for my use during the period that the motion for leave remains pending, on such terms as the court sees fit;

 

…

 

No other relief is sought in the affidavits filed in support of the motions.

 

[5]               The written submissions filed in support of the motions are as follows:

 

1-      The guiding principle in a motion for suspension is to prevent irreversible harm and to maintain the statu quo;

 

2-      It is also important for Parties to be able to continue to defend themselves in the proceedings;

 

3-      Petitioners must prove:

 

1-      An arguable case RJR-McDonald v. Canada, [1994 1 S.C.R. 311;

 

2-     Irremediable harm:

 

- Distribution Percour Inc. v. Ville de Montréal and als, REJB 1998-04900 (C.A.);

- Corriveau v. Speer and al., REJB 2001-25682 (C.A.);

- Congregation of the Followers of the Rabbis of Belz to strenghthen Torah v. Municipality of Val-Morin, 500-09-016048-050 (C.A.), 30 juillet 2008;

 

4-      The Motion for Leave to the Supreme Court shows a serious arguable case on any standard;

 

5-      Given the relatively liberal standard set out in RJR McDonald, supra, the existence of a very serious case cannot be doubted;

 

6-      This is not a constitutional case and no law is to be inoperable for any period of time; therefore the considerations of public interest in Manitoba (A.G.) v. Metropolitain Stores Ltd., [1987] 1 S.C.R. 110 do not apply;

 

7-      The cases cited in paragraph 3(2) supra are fully applicable on the issue of irreversible harm and the affidavits illustrate this;

 

 

[6]               The relief claimed is stated as follows:

 

TO ALLOW the motion and its conclusions

 

 

[7]               The respondent opposes the applications on the ground that this Court is without jurisdiction to grant the relief claimed and that in any event irreparable harm has not been demonstrated. It adds that the balance of convenience operates in its favour.

 

[8]               With respect to the jurisdictional issue, the respondent relies on subsection 225.1(2) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) which provides that the filing of an appeal to the Tax Court results in a statutory stay preventing the Minister of National Revenue from collecting the amounts in controversy. The respondent points out that this stay is only operational until the decision of the Tax Court has been rendered and mailed to the taxpayer. It follows that even if this Court was to stay the decisions which it rendered in December 2008, pursuant to the authority conferred upon it by section 65.1 of the Supreme Court Act, this would leave the decisions of the Tax Court untouched and the power of the Minister to collect unaltered (compare Canadian Pasta Manufacturers’ Assn.  v. Aurora Importing & Distributing Ltd., [1996] F.C.J. No. 1055; 203 N.R. 232 (Q.L.)).

 

[9]               I need not decide whether the jurisdiction of this Court is so limited in order to dispose of the pending motions. The record shows that the appellants filed their applications for leave before the Supreme Court before the due date. The supporting Memorandum of Arguments was also filed in each case. Nothing more needs to be done from the appellants’ perspective before their leave application is referred to a panel of judges and decided. In short, the Supreme Court is in a position to grant effective relief to the appellants, if it chooses to do so.

 

[10]           It follows that no irreparable harm can be said to result from the existing state of affairs. The situation may change in the event that leave is granted but this is not an issue that can be addressed in the context of the present application.

 

[11]           The applications will be dismissed with costs computed on the basis of a single application.

 

 

“Marc Noël”

J.A.

FEDERAL COURT OF APPEAL

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                                                              A-299-07

 

STYLE OF CAUSE:                                                              ROBERT LANGLOIS and HER MAJESTY THE QUEEN

                                                                                               

 

 

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

 

 

REASONS FOR ORDER BY:                                             NOËL J.A.

 

DATED:                                                                                 March 10, 2009

 

 

WRITTEN REPRESENTATIONS BY:

 

 

Julius H. Grey

FOR THE APPELLANT

 

Ian Demers

FOR THE RESPONDENT

 

 

SOLICITORS OF RECORD:

 

GREY CASGRAIN

Montréal, Quebec

 

FOR THE APPELLANT

 

JOHN H. SIMS, Q.C.

Deputy Attorney General of Canada

FOR THE RESPONDENT

 

 

FEDERAL COURT OF APPEAL

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                                                              A-300-07

 

STYLE OF CAUSE:                                                              RALPH E. FARAGGI and HER MAJESTY THE QUEEN

                                                                                               

 

 

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

 

 

REASONS FOR ORDER BY:                                             NOËL J.A.

 

DATED:                                                                                 March 10, 2009

 

 

WRITTEN REPRESENTATIONS BY:

 

 

Julius H. Grey

FOR THE APPELLANT

 

Ian Demers

FOR THE RESPONDENT

 

 

SOLICITORS OF RECORD:

 

GREY CASGRAIN

Montréal, Quebec

 

FOR THE APPELLANT

 

JOHN H. SIMS, Q.C.

Deputy Attorney General of Canada

FOR THE RESPONDENT

 

 

 

 

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