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Date: 19980303 Docket: A-560-97 MONTRÉAL, QUEBEC, THIS 3rd DAY OF MARCH 1998 CORAM: THE HONOURABLE MR. JUSTICE PRATTE THE HONOURABLE MR. JUSTICE DENAULT THE HONOURABLE MADAME JUSTICE DESJARDINS BETWEEN: ADOLFO ELIA, Applicant, AND MINISTER OF NATIONAL REVENUE, Respondent. J U D G M E N T The application for judicial review is dismissed. Louis Pratte J.A. Certified true translation Stephen Balogh Date: 19980303 Docket: A-560-97 CORAM: PRATTE J.A. DENAULT J.A. DESJARDINS J.A. BETWEEN: ADOLFO ELIA, Applicant, - and - MINISTER OF NATIONAL REVENUE, Respondent. Hearing held at Montréal, Quebec, on Tuesday, March 3, 1998. Judgment delivered from the bench on Tuesday, March 3, 1998. REASONS FOR JUDGMENT OF THE COURT BY: PRATTE J.A. Date: 19980303 Docket: A-560-97 CORAM: PRATTE J.A. DENAULT J.A. DESJARDINS J.A. BETWEEN: ADOLFO ELIA, Applicant, - and - MINISTER OF NATIONAL REVENUE, Respondent. REASONS FOR JUDGMENT OF THE COURT (Delivered from the bench at Montréal, Quebec, on Tuesday, March 3, 1998) PRATTE J.A. [1] The Minister of National Revenue having decided that the applicant was not engaged in insurable employment, the applicant appealed to the Tax Court of Canada, as he was authorized to do by section 70 of the Unemployment Insurance Act. The judge of the Tax Court of Canada dismissed the appeal on the ground that the decisions of this Court did not permit him to intervene; he added that he regretted having to make this decision because he considered the Minister's decision to be "totally insupportable" and incomprehensible. It is that decision that the applicant is seeking to have reviewed. [2] Certainly, as counsel for the respondent acknowledged, the judge misunderstood the decisions of this Court, which specify the situations in which the Tax Court of Canada may set aside the Minister's decision in a case such as this one. Contrary to what the judge thought, it is not necessary, in order for the judge to be able to exercise that power, for it to be established that the Minister's decision was unreasonable or made in bad faith having regard to the evidence before the Minister. What is necessary is that the evidence presented to the judge establish that the Minister acted in bad faith, or capriciously or unlawfully, or based his decision on irrelevant facts or did not have regard to relevant facts. The judge may then substitute his decision for that of the Minister. [3] Contrary to what the judge believed, he therefore could have intervened and should have intervened if, as he asserted, the evidence established that the Minister's decision was unreasonable. However, it seems to us that the judge's assertion is also inaccurate and based on an error of law, since the judge did not take into account the well-settled rule that the allegations in the reply to the notice of appeal, in which the Minister states the facts on which he based his decision, must be assumed to be true as long as the appellant has not proved them false. [4] That being the case, the judge's conclusion that the Minister's decision should be affirmed must itself be affirmed. [5] The application for judicial review will therefore be dismissed. "Louis Pratte" J.A. Certified true translation Stephen Balogh FEDERAL COURT OF APPEAL Date: 19980303 Docket: A-560-97 BETWEEN: ADOLFO ELIA, Applicant, - and - MINISTER OF NATIONAL REVENUE, Respondent.
REASONS FOR JUDGMENT OF THE COURT
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