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Date: 20020128 Neutral citation: 2002FCA41 CORAM: DESJARDINS J.A. BETWEEN: HER MAJESTY THE QUEEN Applicant and EDWINA ARSENAULT Respondent Heard at Halifax, Nova Scotia, on January 28, 2002. Judgment delivered from the Bench at Halifax, Nova Scotia, on January 28, 2002. REASONS FOR JUDGMENT OF THE COURT BY: NOËL J.A. Date: 20020128 Neutral citation: 2002FCA41 CORAM: DESJARDINS J.A. BETWEEN: HER MAJESTY THE QUEEN Applicant and EDWINA ARSENAULT Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Halifax, Nova Scotia, on January 28, 2002.) [1] This is a Judicial review application in respect of an Order for costs made by the Tax Court of Canada in a proceeding governed by the informal procedure. The appeal to the Tax Court arose as a result of the disallowance by the Minister of National Revenue of the respondent's rebate claim for Harmonized Sales Tax in the amount of $9,000.00. [2] The Tax Court Judge after allowing the appeal and before granting costs stated ". . .I assume from the information available to me that the amount of GST in dispute was less than $7,000.00. . ." In so stating, he was obviously mindful of paragraph 9(1)(a) of the Tax Court of Canada Rules of Procedure re: GST Appeals which limits an award for costs to inter alia appeals where the amount in issue is equal to or less than $7,000.00. [3] However, the assumption made by the Tax Court Judge as to the amount of the taxes in issue in the proceeding before him appears to have been wrong. He understood that the total taxes assessed were in the amount of $9,000.00. But he was under the incorrect impression that only the federal component of that tax was in issue in the appeal before him. [4] By virtue of section 165 of the Excise Tax Act an assessment issued by the Minister of National Revenue for harmonized sales tax encompasses not only the federal component of that tax but also the provincial component of participating provinces, in this case Nova Scotia. It follows that the amount in issue in the proceeding before the Tax Court Judge exceeded $7,000.00 and that there was no basis for an award of costs. [5] I would allow the application for judicial review and quash the order as to costs. I would allow the applicant the costs of her application. Marc Noël J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-667-00 STYLE OF CAUSE: HER MAJESTY THE QUEEN v. EDWINA ARSENAULT
PLACE OF HEARING: HALIFAX, NOVA SCOTIA DATE OF HEARING: JANUARY 28, 2002 REASONS FOR JUDGMENT : NOËL J.A. DATED: JANUARY 28, 2002 APPEARANCES: MS. V. LYNN W. GILLIS FOR THE APPLICANT SOLICITORS OF RECORD: MORRIS ROSENBERG, FOR THE APPLICANT DEPUTY ATTORNEY GENERAL OF CANADA NO SOLICITOR OF RECORD FOR THE RESPONDENT |
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