Federal Court of Appeal - Kumar v. Canada

[1] This is an appeal from a decision of Mr. Justice Bowie of the Tax Court of Canada, dated July 23, 2004, which dismissed the appellant's motion for an order, under rule 172.4 of the Tax Court of Canada Rules (General Procedure) (the "Rules"), requiring "the Minister of National Revenue ... or their legal counsel ..." to show cause why they ought not to be held in contempt of court.

[2] The learned Tax Court judge concluded that the appellant's motion was without merit and he dismissed it.

[3] Although his appeal challenges Mr. Justice Bowie's decision, the appellant made no attempt whatsoever, either in his written material or in his oral submissions, to persuade us that Mr. Justice Bowie had made any error in dismissing his contempt proceedings. For that reason alone, the appeal should be dismissed.

[4] Rather, the appellant attempted, as he did before Mr. Justice Bowie, to demonstrate that the decisions rendered by Mr. Justice Teskey on August 3 and September 14, 1999, regarding the Minister's reassessments of his 1993 and 1994 taxation years, were wrongly decided.

[5] Specifically, according to the appellant, both Mr. Justice Teskey and Mr. Justice Bowie had failed to properly determine the correct amount of his purchases for the 1993 and 1994 taxation years. He argued that there was a discrepancy of $10,500 for the 1993 taxation year and $6,000 for the 1994 taxation year between the audits performed for those years by the GST auditor and the income tax auditor, and that there could be no doubt that the figures arrived at by the GST auditor (the higher figures) were correct. Hence, according to the appellant, the Minister ought to have reviewed his reassessments and reduced his taxable income.

[6] Unfortunately for the appellant, he was unable to convince Mr. Justice Teskey. As a result, on August 11, 1999, he filed a motion for reconsideration which Mr. Justice Teskey dismissed on September 14, 1999.

[7] The problem with the appellant's position is that the Tax Court judgment of which he complains was rendered on consent. When the appellant put into issue the substance of the consent in his motion for reconsideration, Mr. Justice Teskey confirmed that his judgment was the one to which the appellant had consented. The appellant now points to rule 170 of the Rules to say that the judgment is invalid because his consent was not in writing. Rule 170 sets out the powers of the Court when all of the parties have consented in writing to the judgment disposing of the appeal. It does not require that consent judgment be entered only upon the written consent of the parties, although, as this case shows, there may be some wisdom to such an approach.

[8] Since the appellant has not filed any appeal from the decisions rendered by Mr. Justice Teskey, those decisions are now final and, therefore, can no longer be challenged. Whatever Mr. Justice Teskey did, he did with the appellant's consent.

[9] At paragraphs 9, 10 and 11 of his reasons, Mr. Justice Bowie also pointed out to the appellant that he had failed to appeal Mr. Justice Teskey's decisions and that he had failed to object to the reassessments made by the Minister following Mr. Justice Teskey's decisions:

[9] Mr. Kumar's remedy following the dismissal of his motion under the slip rule, was to appeal to the Federal Court of Appeal from the Judgment, or from the Order dismissing his motion, or both.

[10] The present motion has no merit whatsoever, and it is dismissed. If Mr. Kumar believed that the reassessments made in November 1999 did not properly implement the Court's judgment he could have delivered notices of objection, and eventually appealed to this court. He did none of these, but seeks a committal order instead.

[11] If Mr. Kumar wishes at this late date to attempt to get the matter before the Federal Court of Appeal, he will have to first apply to a Judge of that Court to extend the time to appeal.

[10] For the sake of completion, I should add that even though the appellant did no attempt to show that Mr. Justice Bowie had made any error with regard to his contempt proceedings, I am satisfied, after a careful review of the decision, that the conclusion reached by Mr. Justice Bowie was no doubt the correct one.

[11] For these reasons, I would dismiss the appeal with costs to the respondent in the sum of $1,000.

"Marc Nadon"

J.A.

I agree

Robert Décary J.A.

I agree

J.D. Denis Pelletier

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-482-04

(APPEAL FROM AN ORDER OF THE TAX COURT OF CANADA, DATED JULY 23, 2004, DOCKET NUMBER 97-3304(IT)G)

STYLE OF CAUSE: KUMAR v. H.M.Q.

PLACE OF HEARING: Halifax, Nova Scotia

DATE OF HEARING: June 13, 2005

REASONS FOR JUDGMENT: NADON J.A.

CONCURRED IN BY: DÉCARY J.A.

PELLETIER J.A.

DATED: June 14, 2005

APPEARANCES:

Satish Kumar

FOR THE APPELLANT

Peter Leslie

FOR THE RESPONDENT

SOLICITORS OF RECORD:

John H. Sims, Q.C.

FOR THE RESPONDENT

Deputy Attorney General of Canada

Halifax, NS

B3J 1P3