Important Case for Those Who Would Like To Judicially Review The CRA
If you would like to successfully judicially review the Canada Revenue Agency (CRA) in regards to a fairness decision, the Federal Court, Trial Division in Spence v. the Canada Revenue Agency is worth reading.
In this case, Ian Spence, the applicant in a judicial review was successful. A judicial review is filed pursuant to Rule 18.1 of the Federal Courts Act. A judicial review must be filed within 30 days of the decision under review (in this case the refusal of the CRA to grant the fairness application). The deadline cannot be extended.
The judge granted the judicial review and ordered that (1) the CRA decision be set aside and the matter be referred to a different CRA official for redetermination, and (2) the applicant receive costs in respect of the application for judicial review (in other words the CRA must pay Mr. Spence an amount in respect of his legal fees in pursuing the judicial review).
The judge determined that there was no basis for the CRA representative to claim that there was no basis for granting fairness relief. Under the legislation, the CRA has broad discretion to grant the relief requested. While the CRA has issued guidelines relating to the fairness process, those guidelines do not impede the statutory discretion.
In short, this decision may open the door to a more flexible fairness process. A taxpayer may file a fairness relief application if a liability has been determined and the taxpayer is seeking relief on the basis of fairness.
Cyndee Todgham Cherniak is counsel to and in affiliation with the International Trade Law and the Tax Law (Commodity Tax
