Date: 20031217
Docket: T-517-01
Citation: 2003 FC 1495
Ottawa, Ontario, this 17th day of December, 2003
PRESENT: THE HONOURABLE MR. JUSTICE MacKAY
BETWEEN:
STEVE PRSA
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant seeks judicial review of and an Order setting aside the decision on behalf of the Minister of National Revenue by an officer of Canada Customs and Revenue Agency (the "Agency") dated February 23, 2001, not to exercise the discretion conferred on the Minister by subsection 152(4.2) of the Income Tax Act (the "Act") to reassess the Applicant for taxes paid for the period 1985 through 1994 so as to grant him a disability tax credit for those years.
[2] The Applicant suffered serious injuries at his workplace in October 1982. He was off work for a time, returning in 1984 to light duties which he performed until 1993 when he ceased work on the advice of his doctor. In 1994, he first made application for a disability tax credit as he did in subsequent years. By a consent judgment in 2000 his appeals of his 1995 and 1996 tax assessments were allowed on the basis that he was entitled to the disability tax credit for those years pursuant to subsection 118.3(1) of the Act. Thereafter he requested that the Minister exercise his discretion pursuant to subsection 152(4.2) of the Act to reassess him for the period 1985 through 1994 and to grant him the disability tax credit for each of those years.
[3] His request was refused in May 2000 and in the following month his counsel requested an administrative review of that decision. This was undertaken by an officer on behalf of the Minister who requested, and the Applicant provided, medical reports on his medical condition. Under subsection 152(4.2) the Minister may, if application therefor has been made by a taxpayer, reassess tax, interest or penalties at any time after the expiration of the normal reassessment period. Information Circular 92-3 of the Agency provides that it will issue a refund under subsection 152(4.2) "if it is satisfied that such a refund or reduction (in the amount owed) would have been made if the return or request had been filed or made on time".
[4] In this case the officer conducting the administrative review had before her a report of an examination by the Ontario Ministry of Health dated February 1984, apparently in relation to a Workers Compensation Board appeal. This was after injuries were suffered by the Applicant and immediately before the years for which he now seeks disability tax credits. That report indicated that the Applicant's condition did not deprive him of the ability to walk without help that was normal for his age, and the report did not note any other condition within those listed by the Act as qualifying for a disability allowance. Also before the officer concerned with the review were six certificates concerning his application for disability tax credits relating to the years from April 1995 through October 1996 all of which indicated that the Applicant became restricted in basic activities of daily living in 1982 but each also indicated that he was able to perform the seven basic activities of daily living specified in subsection 118.4(l) of the Act.
[5] Under the latter provision the qualifying conditions of disability are set out, including the requirement of an inordinate amount of time to perform a basic activity of daily living, such as walking. It is that activity among those specified by the statute, i.e., walking but requiring an undue amount of time to do so that the Applicant here claims as a result of his accident in 1982.
[6] The officer considering his application for reassessment concluded, based upon the evidence before her, that while he may have suffered chronic pain as a result of the accident he was not markedly restricted in the years in question in his ability to perform a basic activity of daily living as defined in the statute. That conclusion was accepted and he was advised that his request for reassessment was refused. That decision led to this application for judicial review.
[7] The Applicant argues that the officer considering his application for reassessment erred and did not consider the evidence that was before her to demonstrate that the applicant's ability to perform the basic activity of daily living, namely walking, was markedly restricted because he required an inordinate amount of time to perform the basic activity of walking. It is submitted that the words "an inordinate amount of time" to perform a basic activity of daily living are to be interpreted in the common sense every day use of those words to mean longer than usual when compared to normal people.
[8] The Respondent submits that the standard of review to be applied in a review of the exercise of the Minister's discretion under subsections of the Act is that of patent unreasonableness.
[9] The Respondent argues that the decision under review is clearly not patently unreasonable. Further, the Respondent submits that the Minister observed the principles of procedural fairness and did not err in law pursuant to subsection 18.1(4) of the Federal Court Act in making its decision.
[10] The Respondent underlines the fact that over the course of two reviews by the Minister, the Applicant had the opportunity to make representations and submit relevant documentation. The Agency carefully considered all of the facts before the decision maker, and the guidelines formulated to assist in the exercise of the Minister's discretion under subsection 152(4.2) of the Act were considered before discretion was exercised to decline the relief sought by the Applicant. Thus, the Respondent argues that the Applicant has failed to point out to any reason which would warrant this Court's intervention.
[11] It is trite law that where the Minister's discretion has been exercised in good faith and in accordance with the principles of natural justice and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose of that discretion, this Court should not interfere with the exercise of that discretion even if the Court would have exercised that discretion in a different manner had it been charged with that responsibility. In other words, unless the Court is persuaded that the decision in question is patently unreasonable, the Court would not intervene.
[12] When this matter was heard in Toronto on June 10, 2003, after hearing from counsel for both parties, the Court, in the interest of justice, adjourned the proceeding pending an opportunity for new counsel representing the Applicant to seek additional evidence to support the Applicant's claim, and an opportunity for any such information to be assessed, within a fixed time frame and thereafter for further submissions to be made by the parties. This unusual step was taken in view of the limited value of the outstanding claim by the Applicant, and his plea that further time be provided to obtain evidence from doctors who were no longer in practice but who knew his situation in the 1980s and early 90s.
[13] It was acknowledged by counsel for the Attorney General that if new evidence were available about the Applicant's condition in the years in question that could be assessed and his request re-evaluated. In the circumstances it seemed to me that costs would be saved for all by providing an opportunity for further evidence to be provided and if any were, for the Court to consider further submissions on behalf of the parties should that prove necessary. Thus an Order went on June 10th, 2003 so directing, but providing that any further evidence be submitted by the end of October 2003.
[14] By correspondence dated November 5th , 2003, counsel for the Respondent indicated that neither the Respondent nor the Agency had received any additional evidence from the Applicant. In the absence of further evidence, the Court determines that the Applicant has not established that the decision in question was patently unreasonable.
[15] In the circumstances, the application of Mr. Prsa for judicial review is dismissed.
ORDER
[16] IT IS ORDERED that the application for judicial review is dismissed.
"W. Andrew MacKay"
J.F.C.
Ottawa, Ontario
December 17, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-517-01
STYLE OF CAUSE: STEVE PRSA
- and -
HER MAJESTY THE QUEEN
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, June 10, 2003
REASONS FOR ORDER AND ORDER OF MacKAY J.
DATED: Wednesday, December 17, 2003
APPEARANCES:
Michael F. O'Connor
FOR APPLICANT
Kevin Dias
FOR RESPONDENT
SOLICITORS OF RECORD:
O'Connor, Zanardo
Mississauga, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT