Fiducie Dauphin v. Canada

Fiducie Dauphin v. Canada
Court (s) Database
Federal Court of Appeal Decisions
Date
2009-09-08
Neutral citation
2009 FCA 257
File numbers
A-241-09
Decision Content
Date: 20090908
Docket: A-241-09
Citation: 2009 FCA 257
CORAM: NOËL J.A.
PELLETIER J.A.
TRUDEL J.A.
BETWEEN:
FIDUCIE DAUPHIN, 9125-9622 QUÉBEC INC., CHANTAL FRÉGAULT, STÉPHANE DESCOTEAUX, SOPHIE LEBEL, NORMAND DESCOTEAUX
Applicants
and
HER MAJESTY THE QUEEN
Respondent
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on September 8, 2009.
REASONS FOR ORDER BY: TRUDEL J.A.
CONCURRED IN BY: NOËL J.A.
PELLETIER J.A.
Date: 20090908
Docket: A-241-09
Citation: 2009 FCA 257
CORAM: NOËL J.A.
PELLETIER J.A.
TRUDEL J.A.
BETWEEN:
FIDUCIE DAUPHIN, 9125-9622 QUÉBEC INC., CHANTAL FRÉGAULT, STÉPHANE DESCOTEAUX, SOPHIE LEBEL, NORMAND DESCOTEAUX
Applicants
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
TRUDEL J.A.
[1] The Federal Court dismissed the applicants’ applications by which they sought, among other things, to set aside the ex-parte collection order made against them under subsections 225.2(2) and (3) of the Income Tax Act, R.S.C., 1985, c. 1 (5th Supp.) (ITA).
[2] The applicants filed an application for judicial review before this Court to reverse the judgment of the Federal Court (2009 FC 346).
[3] The respondent requests that the application be struck out and dismissed. The applicants did not file a record in reply and are out of time to do so.
[4] It is clear that the Federal Court made its decision pursuant to subsections 225.2(8) and (11) of the ITA, which provide as follows:
(8) Where a judge of a court has granted an authorization under this section in respect of a taxpayer, the taxpayer may, on 6 clear days notice to the Deputy Attorney General of Canada, apply to a judge of the court to review the authorization.
(11) On an application under subsection 225.2(8), the judge shall determine the question summarily and may confirm, set aside or vary the authorization and make such other order as the judge considers appropriate.
[5] Moreover, under subsection 225.2(13) of the ITA, the review order made in accordance with the above subsections is not subject to appeal:
(13) No appeal lies from an order of a judge made pursuant to subsection 225.2(11).
[6] In applying for judicial review of a decision of the Federal Court, the applicants are trying to do indirectly what they cannot do directly.
[7] Subsection 225.2(13) would be of no effect if it could be circumvented by the mere choice of another procedural vehicle, provided that this other proceeding is even available to the applicants. However, for the purposes of the application at issue, it is not necessary to discuss the merits of the applicants’ approach any further.
[8] Accordingly, I would dismiss the applicants’ application for judicial review with costs.
“Johanne Trudel”
J.A.
“I agree.
Marc Noël J.A.”
“I agree.
J.D. Denis Pelletier J.A.”
Certified true translation
Sarah Burns
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-241-09
STYLE OF CAUSE: Fiducie Dauphin et al. v. Her Majesty the Queen
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: TRUDEL J.A.
CONCURRED IN BY: NOËL J.A.
PELLETIER J.A.
DATED: 20090908
WRITTEN REPRESENTATIONS BY:
Sébastien Sénéchal
FOR THE APPLICANTS
Martin Lamoureux
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Bardagi Sénéchal Inc.
Montréal, Québec
FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR THE RESPONDENT