A-203-96
CORAM: STRAYER J.A.
ROBERTSON J.A.
GRAY D.J.
B E T W E E N:
ATTORNEY GENERAL OF CANADA
Applicant
" and "
770373 ONTARIO LIMITED
Respondent
HEARD at Toronto, Ontario on Thursday, January 23, 1997
JUDGMENT delivered from the Bench at Toronto, Ontario on Thursday, January 23, 1997
REASONS FOR JUDGMENT BY: STRAYER J.A.
A-203-96
CORAM: STRAYER J.A.
ROBERTSON J.A.
GRAY D.J.
B E T W E E N:
ATTORNEY GENERAL OF CANADA
Applicant
" and "
770373 ONTARIO LIMITED
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto,
Ontario on Thursday, January 23, 1997)
STRAYER J.A.
The Court has found this application for judicial review to be difficult because no findings of fact and no reasons were given by the learned Tax Court Judge in support of his decision to set aside the penalty imposed on the respondent under section 280 of the Excise Tax Act.
The only basis argued before us for supporting that decision has been the defence of due diligence, a matter adverted to briefly by the Minister's counsel in the Tax Court. Even if in law there is a defence of due diligence to payment of the penalty under section 280, a matter which we find it inappropriate to decide in these circumstances, we have been referred to no evidence before the trial judge, either in the transcript of the trial proceedings or in documents, that would have supported such a defence. We must therefore set aside the decision on the basis that it was made without regard to the evidence, even assuming that there was no error of law in applying a defence of due diligence.
The application will therefore be allowed, the decision of the Tax Court be set aside and the matter referred back to the Tax Court for determination in accordance with these reasons. Reasonable and proper costs will be awarded to the respondent in accordance with section 18.3008 of the Tax Court of Canada Act.
J.A.
FEDERAL COURT OF APPEAL
Court No. A-203-96
B E T W E E N:
ATTORNEY GENERAL OF CANADA
Applicant
-- and --
770373 ONTARIO LIMITED
Respondent
-- REASONS FOR JUDGMENT --
(Delivered from the Bench at Toronto
Ontario on Thursday, January 23, 1997)
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.:
A-203-96
STYLE OF CAUSE:
Attorney General of Canada v. 770373 Ontario Limited
PLACE OF HEARING:
Toronto, Ontario
DATE OF HEARING:
Thursday, January 23, 1997
REASONS FOR JUDGMENT
OF THE COURT:
Strayer J. A.
Robertson J.A.
Gray D.J.
RENDERED FROM THE BENCH BY:
Strayer J. A.
APPEARANCES:
Mr. Harry Ehrlichman
Ms. Marilyn Vardy
for the Applicant
Mr. David M. Sherman
for the Respondent
SOLICITORS OF RECORD:
Mr. George Thomson
Deputy Attorney General of Canada
Ottawa, Ontario
for the Applicant
Mr. David Sherman
Thornhill, Ontario
for the Respondent