Before: The Honourable Justice Dominique Lafleur
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Cédric Fortin-Néron |
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ORDER
UPON reading the Respondent’s Notice of Motion (the “Motion”) dated February 26, 2024, seeking an order:
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1-to strike out paragraphs 3 to 22 of the Amended Notice of Appeal dated January 23, 2024 (the “Notice of Appeal”), in accordance with section 53 of the Tax Court of Canada Rules (General Procedure) (the “Rules”), and to require the Appellant to re-amend the Notice of Appeal to comply with section 48 of the Rules and with Form 21(1)(a) of the Rules by precisely relating the material facts relied on, specifying the issues to be decided, referring to the statutory provisions relied on and setting forth the reasons the Appellant intends to rely on;
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2-to grant the Appellant 60 days from the date of this order within which to file and serve an amended notice of appeal that complies with the Rules;
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3-to grant the Respondent 60 days from the date on which the amended notice of appeal is served within which to file and serve the reply to the amended notice of appeal;
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4-or, alternatively, to extend by 60 days from the date of this order the time within which to file and serve the reply to the notice of appeal.
UPON reading the documents filed in the record and the request that the Motion be disposed of in writing and without appearance by the parties;
AND UPON reading the written representations of the parties;
THE COURT ORDERS as follows:
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In accordance with the attached Reasons for Order, the Motion is granted in part, with costs to the Respondent, and paragraphs 3 to 14 and paragraphs 17 to 22 of the Notice of Appeal are struck out;
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The Appellant must re-amend the Notice of Appeal to render it compliant with these Reasons for Order, namely, by striking out paragraphs 3 to 14 and paragraphs 17 to 22 of the Notice of Appeal, relating the material facts relied on, specifying the issues to be decided, referring to the statutory provisions relied on and setting forth the reasons the Appellant intends to rely on;
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No later than 60 days from the date of this order, the Appellant must file and serve an amended notice of appeal that complies with these Reasons for Order; and
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No later than 60 days from the date the amended notice of appeal is served in accordance with these Reasons for Order, the Respondent must file and serve his reply to the amended notice of appeal.
Signed at Montréal, Quebec, this 30th day of July 2024.
Translation certified true
On this 29th day of May 2025
Margarita Gorbounova, Senior Jurilinguist
BETWEEN:
SYLVAIN SIMARD,
Appellant,
and
HIS MAJESTY THE KING,
Respondent.
REASONS FOR ORDER
I. The Motion
[1] The Respondent filed a Notice of Motion (the “Motion”) dated February 26, 2024, seeking an order to strike out paragraphs 3 to 22 of the Amended Notice of Appeal, which was filed on January 23, 2024 (the “Notice of Appeal”), in accordance with section 53 of the Tax Court of Canada Rules (General Procedure) (the “Rules”) and to grant the Appellant leave to re-amend the Notice of Appeal so that it complies with the Rules, namely, with section 48 and with Form 21(1)(a), by relating the material facts relied on, specifying the issues to be decided, referring to the statutory provisions relied on and setting forth the reasons the Appellant intends to rely on.
II. Conclusion
[2] The Motion is allowed in part, with costs to the Respondent, and paragraphs 3 to 14 and paragraphs 17 to 22 of the Notice of Appeal are struck out.
[3] The Appellant must re-amend the Notice of Appeal to render it compliant with these Reasons for Order, namely, by striking out paragraphs 3 to 14 and paragraphs 17 to 22 of the Notice of Appeal, relating the material facts relied on, specifying the issues to be decided, referring to the statutory provisions relied on and setting forth the reasons the Appellant intends to rely on.
III. Facts
[4] The Appellant is appealing from reassessments made by the Minister of National Revenue (the “Minister”) by which a total of $482,474 was added to his income as appropriation of funds under the Income Tax Act (R.S.C. 1985, c. 1 (5th Supp.)) (the “Act”) for the 2007 to 2011 taxation years.
[5] According to the Notice of Appeal, the reassessments are unjustified because, given that the reassessments at issue were made solely on the basis of the audit conducted by the Agence du Revenu du Québec (the “ARQ”) and that the ARQ amended its own assessments by reducing the amount added to the Appellant’s income by $269,033 following an agreement between the ARQ and the Appellant, the Minister should have reassessed the Appellant in accordance with the agreement between the ARQ and the Appellant, which was not done.
[6] According to the Respondent, the Notice of Appeal does not comply with the Rules because, on its face, it contains no material facts relied on, no issues that the Court has jurisdiction to decide, no statutory provisions relied on and no clear and concise reasons the Appellant intends to rely on. The deficiencies in the Notice of Appeal therefore prevent the Respondent from preparing a reply to the notice of appeal. In addition, paragraphs 3 to 22 of the Notice of Appeal refer to allegations of fact that are outside the Court’s jurisdiction, and accordingly they disclose no reasonable grounds for appeal since they are based on the actions of Canada Revenue Agency (the “CRA”) staff at the objection stage.
[7] As for the Appellant, he alleges that the Notice of Appeal complies with the Rules. More specifically, according to the Appellant, the Notice of Appeal does not deal with the process that led up to the reassessments, but rather with the fact that the reassessments are not valid because they do not comply with the assessments made by the ARQ, which reduced the amount that had been added to the Appellant’s income by $269,033. According to the Appellant, since the CRA did not audit him, the Minister should have assessed the Appellant on the basis of the ARQ’s assessments. If this was not so, [translation] “…it would be disproportionate to require a taxpayer to make a second time the same objections that he or she already made before one of the revenue agencies and that were successful”. In addition, according to the Appellant, the Respondent is able to clearly identify the arguments to which he must respond.
IV. Applicable general principles
A. Format of notices of appeal
[8] In accordance with section 17.2 of the Tax Court of Canada Act, R.S.C. 1985, c. T-2 (the “TCC Act”), a person wishing to appeal to this Court under the general procedure must file an originating document in the form and manner set out in the Rules and pay the applicable filing fee.
[9] The relevant provisions of the Rules read as follows:
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[10] Form 21(1)(a) applies for the purposes of an appeal under the Act and is reproduced below:
[11] As the Court noted in Kondur v. The Queen, 2015 TCC 318:
… It is a mandatory requirement of pleading in the General Procedure that the notice of appeal or any amended version of it contain all of the specifications of Form 21(1)(a) … This is not just a formality. The purpose of these requirements is to ensure that the issues are properly defined for discovery and trial so that the Respondent will know what arguments she must meet: Bibby v The Queen, 2009 TCC 588.
B. Striking out a pleading
[12] The power to strike out all or part of a pleading is set out in section 53 of the Rules, which reads as follows:
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[13] In R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, the Supreme Court of Canada established the principles for striking out claims. A motion to strike must be used with care and is “a valuable housekeeping measure essential to effective and fair litigation”. “It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial” (para. 19). Therefore, the test developed by the Supreme Court is as follows:
... The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial. (para. 21)
[14] In my view, these principles also apply to the circumstances of this case, even though only certain excerpts of the Notice of Appeal are requested to be struck out.
[15] The test for granting a motion to strike is therefore rigorous. The Court must not strike out all or part of a pleading unless it is plain and obvious that, among other things, it discloses no reasonable claim and that the appeal has no chance of success (Main Rehabilitation Co. Ltd. v. The Queen, 2004 FCA 403, at para. 3).
[16] To determine whether all or part of a pleading must be struck out, the facts set out in the pleading are assumed to be true, and the Court hears no witnesses. As specified by this Court in 881751 Ontario Limited v. The Queen, Roy v. The Queen, 2021 TCC 9 (at para. 15) [881751 Ontario]:
... The Court’s approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial. It is not the job of a Motions judge to determine if an argument is worth considering or to reach a conclusion on a disputed point of statutory interpretation. Therefore, for a Motion to strike to succeed, the irregularity or the irrelevancy must be clear and apparent at first glance.
C. The Court’s jurisdiction
[17] The Court’s jurisdiction is defined in the legislation. Subsection 12(1) of the TCC Act reads as follows:
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[18] In Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250, the Federal Court of Appeal concluded as follows:
[83] The Tax Court does not have jurisdiction on an appeal to set aside an assessment on the basis of reprehensible conduct by the Minister leading up to the assessment, such as abuse of power or unfairness … If an assessment is correct on the facts and the law, the taxpayer is liable for the tax. …
[19] Similarly, in Ereiser v. Canada, 2013 FCA 20 [Ereiser], Justice Sharlow stated the following:
[31] … [T]he role of the Tax Court of Canada in an appeal of an income tax assessment is to determine the validity and correctness of the assessment based on the relevant provisions of the Income Tax Act and the facts giving rise to the taxpayer’s statutory liability. Logically, the conduct of a tax official who authorizes an assessment is not relevant to the determination of that statutory liability. …
[Emphasis added.]
[20] These well-settled principles were recently affirmed by the Supreme Court of Canada in Iris Technologies Inc. v. Canada (Attorney General), 2024 SCC 24.
[21] Furthermore, section 171 of the Act provides that the Court may dispose of an appeal by dismissing it or by allowing it and vacating the assessment, varying the assessment or referring the assessment back to the Minister for reconsideration and reassessment.
V. ANALYSIS
[22] In this case, the Notice of Appeal (a copy of which is enclosed in Appendix A to these Reasons) clearly does not meet the requirements of the TCC Act or of the Rules for several reasons described below.
[23] First, the Notice of Appeal contains no references to the statutory provisions relied on, contrary to the requirement in paragraph (e) of Form 21(1)(a) of the Rules.
[24] In addition, there are no material facts relied on in the Notice of Appeal, contrary to the requirement in paragraph (c) of Form 21(1)(a) of the Rules. The Respondent is not in a position to file a reply because the facts described in the Notice of Appeal do not allow the Respondent to determine the cause of action in this case.
[25] More specifically, paragraphs 3 to 14 and paragraphs 17 to 19 describe the process that led up to the assessments and the reassessments at issue. Those paragraphs refer to the fact that the assessments were made following the audit conducted by the ARQ and the exchange of information between the federal and provincial tax authorities, that the objection process at the federal level was suspended while awaiting the results of the objection at the provincial level, that the ARQ then reduced the amounts assessed as appropriation of funds by $269,033 to reassess the Appellant for a total of $213,441 (and detailing the amounts assessed as such for each year) and that the Appellant appealed to the Court of Québec. They also refer to the agreement between the parties with respect to the provincial income tax assessments.
[26] The facts detailed at paragraphs 3 to 14 and paragraphs 17 to 19 are not material facts that can be relied on and are outside the Court’s jurisdiction because these facts describe the process that led up to the reassessments at issue and refer to the actions of CRA officials. As noted above, the Court’s jurisdiction is limited to determining the validity and correctness of the assessments at issue based on the relevant provisions of the Act and the facts giving rise to the taxpayer’s statutory liability, not to evaluating the conduct of the CRA official who authorized the assessments (see Ereiser, supra, at para. 31) or the process that led up to the assessments.
[27] In addition, the issue described at paragraph 20 of the Notice of Appeal as being [translation] “whether the Respondent should have based his Assessments on the Revised ARQ Assessments” is not an issue that falls within the Court’s jurisdiction. As noted below, the Court’s jurisdiction is to determine the validity and correctness of the assessments at issue based on the relevant facts and the application of the Act to those facts. Since paragraph 20 of the Notice of Appeal is the only paragraph that deals with the issue, the Notice of Appeal does not specify the issues to be decided, contrary to the requirement in paragraph (d) of Form 21(1)(a) of the Rules.
[28] Finally, the Notice of Appeal does not set forth the reasons the Appellant intends to rely on. Indeed, only paragraphs 21 and 22 of the Notice of Appeal contain the Appellant’s arguments. According to those paragraphs, the Appellant alleges that the assessments are unjustified and that [translation] “… the Respondent should have based his Assessments of the Appellant on the Revised ARQ Assessments …”. These are not reasons that the Appellant can rely on to dispute an assessment because there is no reference to the facts or to the application of the Act to the material facts to determine the Appellant’s tax obligations. Thus, the Notice of Appeal does not set forth the reasons the Appellant intends to rely on, contrary to the requirement in paragraph (f) of Form 21(1)(a) of the Rules.
[29] The Respondent is correct in requesting that paragraphs 3 to 14 and paragraphs 17 to 22 be struck out. First, as stated in the case law, to strike out a pleading, “… the irregularity or the irrelevancy must be clear and apparent at first glance” (881751 Ontario, supra). As mentioned above, the Notice of Appeal clearly does not meet the requirements of the TCC Act and the Rules. In addition, the findings sought by the Appellant are clearly outside the Court’s jurisdiction. Thus, in accordance with section 53 of the Rules, the Court may order these paragraphs to be struck out.
[30] Given the deficiencies of the Notice of Appeal, it is clear that it must be amended. However, irregular pleadings are simply an irregularity under section 7 of the Rules (see Okoroze v. The Queen, 2012 TCC 360 and Kossow v. The Queen, 2008 TCC 422), which reads as follows:
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[31] The deficiencies in the Notice of Appeal are very significant. In my view, the correct solution is to strike out paragraphs 3 to 14 and paragraphs 17 to 22 of the Notice of Appeal and to allow the Appellant to file a re-amended notice of appeal that complies with the requirements of the TCC Act and the Rules, and more specifically, a notice of appeal that complies with Form 21(1)(a) of the Rules.
[32] In his re-amended notice of appeal, the Appellant must relate the material facts relied on, specify the issues to be decided, refer to the statutory provisions relied on and set forth the reasons he intends to rely on. In addition, the Appellant must not seek a finding that is outside the Court’s jurisdiction.
Signed at Montréal, Quebec, this 30th day of July 2024.
“Dominique Lafleur”
Lafleur J.
Translation certified true
on this 29th day of May 2025
Margarita Gorbounova, Senior Jurilinguist
[translation]
APPENDIX ADOCKET: 2021-1010(IT)G
AMENDED NOTICE OF APPEAL – GENERAL PROCEDURE
TAX COURT OF CANADA
In the matter of the Income Tax Act
BETWEEN:
SYLVAIN SIMARD
179 De La Terrasse du Fjord Street Saguenay, Quebec G7G 5C8
Appellant
AND
HIS MAJESTY THE KING
Respondent
AMENDED NOTICE OF APPEAL
JANUARY 23, 2024
The Appellant is filing an AMENDED NOTICE OF APPEAL ON JANUARY 23, 2024, in relation to the notices of assessment issued in July 2013 (hereinafter the “Assessments”) by the Canada Revenue Agency (hereinafter the “CRA”) for the 2007 to 2011 taxation years (hereinafter the “Years at Issue”).
A. FACTS
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The Appellant works as a doctor in Saguenay(Jonquière borough), providing services in medical esthetics;
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The Appellant objected to the Assessments by filing, on or about October 3, 2013, a Notice of Objection within the prescribed time limit (hereinafter the “Notice of Objection”);
CAIN LAMARRE
A V O C A T S / S. E. N. C. R. L.
2
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The Assessments were issued following the transfer to the CRA by the Agence deRevenu du Québec (hereinafter the “ARQ”) of information collected following an audit conducted by the ARQ;
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Thus, to issue the Assessments, the CRA based itself solely on the outcome of the audit conducted by the ARQ without conducting its own audit of the Appellant;
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As a result, after the Assessments were issued and the Notice of Objection filed, the Assessment file was suspended pending the final outcome of the provincial assessments;
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On February 11, 2013, following an audit, the ARQ issued the notices of income tax assessment (hereinafter the “First ARQ Assessments”)for the Years at Issue for a total of $482,474 in appropriation of funds;
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Year |
Appropriation of funds |
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$35,521 |
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$78,135 |
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2009 |
$114,153 |
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$126,149 |
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$128,516 |
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TOTAL |
$482,474 |
7. The Appellant objected to the First ARQ Assessments;
8. Given the Appellant’s submissions, the ARQ lowered the amounts initially assessed as appropriation of funds;
9. In fact, on July 22, 23 and 24, 2014, following the objection, the ARQ issued new notices of assessment (hereinafter the “Revised ARQ Assessments”), lowering by $269,033 the amounts initially assessed as appropriation of funds;
10. The Revised ARQ Assessments for the Years at Issue therefore total $213,441 in appropriation of funds;
|
Year |
Appropriation of funds |
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2007 |
$18,194 |
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2008 |
$34,915 |
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2009 |
$49,563 |
|
2010 |
$51,787 |
CAIN LAMARRE
A V O C A T S / S. E. N. C. R. L.
3
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2011 |
$58,982 |
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TOTAL |
$213,441 |
11. On October 3, 2014, the Appellant again objected to the Revised ARQ Assessments;
12. On July 6, 2017, the ARQ confirmed the Revised ARQ Assessments;
13. On October 3, 2017, the Appellant appealed to the Court of Québec from the Revised ARQ Assessments;
14. On November 19, 2019, the Appellant and the ARQ settled the dispute between them out of court;
15. Following the settlement between the Appellant and the ARQ, the CRA issued, on or about October 29, 2020, a notice of confirmation of the Assessments under the Income Tax Act (“ITA”) for the Years at Issue;
16. In these Assessments, the CRA added the following additional amounts to the Appellant’s income:
|
Year |
Appropriation of funds |
|
2007 |
$35,521 |
|
2008 |
$78,135 |
|
2009 |
$114,153 |
|
2010 |
$126,149 |
|
2011 |
$128,516 |
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TOTAL |
$482,474 |
17. The Assessments reproduce and are incorrectly based on the First ARQ Assessments;
18. In fact, the CRA had to correct its assessments on the basis of the latest assessments issued by the ARQ, that is, the Revised ARQ Assessments;
19. Because of this, the CRA has unduly added to the Appellant’s income $269,033 in appropriation of funds, even though that amount had been removed from the First ARQ Assessments following the Appellant’s objection;
B. ISSUES
20. The issue in this appeal is as follows:
(a) Whether the Respondent should have based his Assessments on the Revised ARQ Assessments.
CAIN LAMARRE
A V O C A T S / S. E. N. C. R. L.
4
C. APPELLANT’S ARGUMENTS
21. The Appellant respectfully submits that the Respondent’s Assessments are unjustified in the circumstances;
22. As mentioned, the Respondent should have based his assessments of the Appellant on the Revised ARQ Assessments, which had lowered the amounts assessed as appropriation of funds by $269,033, the income adjustment for the Appellant for the Years at Issue therefore totalling $213,441;
23. The Appellant respectfully submits that the Assessments issued by the Respondent for the Years at Issue are not well founded in fact or in law.
D. CONCLUSIONS
On the basis of the foregoing, the Appellant is asking the Honourable Court to:
- ALLOW this appeal;
- REFER the assessments back to the Minister for reconsideration and reassessment;
- WITH COSTS.
Chicoutimi, January 23, 2024
Jean Dauphinais / Cédric Fortin-Néron
CAIN LAMARRE
Counsel for the Appellant
190 Racine Street East, Suite 300
Chicoutimi, Quebec G7H 1R9
Telephone: 514-545-4580
Facsimile: 514-549-9590
CAIN LAMARRE
A V O C A T S / S. E. N. C. R. L.
TAX COURT OF CANADA (GENERAL PROCEDURE)
DOCKET: 2021-1010(IT)G
SYLVAIN SIMARD
Appellant
-V-
HIS MAJESTY THE KING
Respondent
AMENDED NOTICE OF APPEAL JANUARY 23, 2024
Our file: 10-24-1058
Jean Dauphinais / Cédric Fortin-Néron, Counsel for the Appellant
Email: jean.dauphinais@cainlamarre.ca cedric.fortin.neron@cainlamarre.ca and
notification.cain.saguenay@cainlamarre.ca
190 Racine Street East, Suite 300 Chicoutimi, Quebec G7H 1R9 Telephone: 514-545-4580
Facsimile: 514-549-9590
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CITATION: |
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COURT FILE NO.: |
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STYLE OF CAUSE: |
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PLACE OF HEARING: |
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DATES OF MOTION AND WRITTEN REPRESENTATIONS: |
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REASONS FOR ORDER BY: |
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DATE OF ORDER: |
APPEARANCES:
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Jean Dauphinais Cédric Fortin-Néron |
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Counsel for the Respondent: |
Emmanuel Jilwan |
COUNSEL OF RECORD:
For the Appellant:
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Name: |
Cédric Fortin-Néron |
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Firm: |
Cain Lamarre, L.L.P. |
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Shalene Curtis-Micallef Deputy Attorney General of Canada Ottawa, Canada |