ELIZABETH BERNARD Applicant v. MINISTER OF, 2017 FC 778

Date: 20180818 Docket: T-81-17 Citation: 2017 FC 778 Ottawa, Ontario, August 18, 2017 PRESENT: The Honourable Mr. Justice Annis BETWEEN:ELIZABETH BERNARDApplicantandMINISTER OF NATIONAL REVENUERespondent JUDGMENT AND REASONS [1] This is a motion by the Respondent to strike the underlying judicial review application on the grounds that it has beenrendered moot due to legislative amendments.

The Respondent argues that there is no remaining lis between the parties, while nopractical purpose would be served by the Court rendering a decision in the matter. [2] The Applicant is contesting a decision of the Minister relieving labour organizations and labour trusts from having to file an information return for fiscal periods starting in 2017 pursuant to the previous

section 149.01 of the Income Tax Act, RSC, 1985, c 1 (5th Supp) [ITA]. Failure to comply with the reporting requirements was at the time an offence punishable by section 239(2.31) of the ITA.Both sections 149.01 and 239(2.31) of the ITA were repealed as of June 18, 2017. [3] The Minister had applied her discretion to waive the reporting requirements applicable to labour organizations and labourtrusts under

section 149.01 of the ITA for their financial period starting 2017. [4] The Minister maintains the discretion conferred by express statutory authority to waive the obligation to file any form orreturn mandated under section 220 (2.1) of the ITA. [5] A motion to strike an application for judicial review should only succeed if the application is so clearly improper as to haveno chance of success (Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc., 2013 FCA 250 at para 47). [6] Two requirements are required to be met to strike an appeal for mootness (Borowski v Canada (Attorney General), (SCC), [1989] 1 SCR 342 at p 353 [Borowski]).

First, the Court must determine whether there is a live controversy. Second,the Court may exercise its discretion to address the issue in consideration of the following relevant factors: (

a) the Court’s competence to resolve legal disputes rooted in the adversary system; (

b) the concern for judicial economy; and (

c) the need for the Court to demonstrate a measure of awareness of its proper law-making function. [7] I agree that there is a lack of live controversy. There is no filing requirement that the Minister could enforce for the fiscalperiods, while the labour organizations or labour trusts cannot be punished if no offence is committed. Even if information returns werefiled, the Canada Revenue Agency is prohibited from publishing information returns on its website now that the exception to subsection241(1) contained in

section 149.01 is repealed. Accordingly, setting aside the waiver cannot possibly serve any practical purposes. [8] The Applicant argues that the issues in the application involve the consideration of the parameters of the discretion conferredby the Minister by subsection 220(2.1) , which reads as follows:

(2.1) Where any provision of this Act or a regulation requires a person to file a prescribed form, receipt or other document, or to provideprescribed information, the Minister may waive the requirement, but the person shall provide the document or information at theMinister’s request. [9] She claims that the exercise of discretion to waive the requirement to keep books and records is an issue that transcends therepealed provisions. I do not agree. [10] The existence of a controversy is not sufficient in the context of the first step of the test for mootness.

The resolution of thecontroversy must have a practical effect as summarized in Borowski at page 353 as follows: “The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or mayaffect the rights of the parties. The decision of the court will have no practical effect on such rates, the court will decline to decide thecase.” [11] The Applicant further contends that even if there is no live controversy, the Court should exercise its discretion to allow thejudicial review of the Minister’s decision to proceed.

She first argues that a live controversy continues to exist because of the lack oforiginal foundation to invoke the provisions in question. However, the application will not resolve a live controversy affecting the rightsof the parties or any related issue inasmuch as labour organizations and labour trust no longer have any obligation to file information

returns and nor can the provisions be enforced. [ 12 ] Additionally, the concerns for judicial economy favour declining the exercise of discretion to address these issues, while pronouncing judgment in the absence of a dispute might be viewed as an intrusion in the role of the legislative branch ( Borowski , supra pp 362, 365). [ 13 ] Finally, it is noted that the Applicant no longer claims a private interest in this matter.

Accordingly, she cannot buttress her application and claim new grounds for genuine interests that were not initially alleged in her application, such that she likely lacks public standing. [ 14 ] Four all of the reasons described above, the motion to strike is allowed with costs.

If the parties are unable to agree on a reasonable cost figure, they should be assessed on the basis of Tariff B, under Column III of the Federal Courts Rules , SOR/98-106 [the Rules]. [ 15 ] In addition, an interim order is also granted to the Respondent providing an extension of time for compliance with all further steps in the litigation, including the compliance with rules 317 and 318 of the Rules until this motion has been finally decided.

JUDGMENT in T-81-17 THIS COURT’S JUDGMENT is that the application for judicial review be struck with costs to the Respondent and an interim order for an extension of time is granted for compliance with all further steps in this litigation until this motion has been finally decided. "Peter Annis" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-81-17 STYLE OF CAUSE: ELIZABETH BERNARD v MINISTER OF NATIONAL REVENUE MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES JUDGMENT AND reasons: ANNIS J.

DATED: AUGUST 18, 2017 WRITTEN REPRESENTATIONS BY : Elizabeth Bernard For The Applicant (ON HER OWN BEHALF) Charles Camirand For The Respondent SOLICITORS OF RECORD : Attorney General of Canada Ottawa, Ontario For The Respondent