Metrobec Inc. v. The Queen

Metrobec Inc. v. The Queen

The Court granted the Crown an extension of time to file a reply because the Hennelly criteria were satisfied (intent to litigate, some merit, no demonstrated prejudice, reasonable explanation for delay) and therefore preclusion and the presumption under Rule 44(2) did not apply; the Court struck specified paragraphs from the notice of appeal under Rule 53 because they were argumentative, conclusions of law, irrelevant to the Court's jurisdiction (including QST and alleged Minister misconduct) or did not plead material facts; the appellant was ordered to re-file an amended notice within 30 days and the respondent to file a reply within 30 days of service, with costs in the cause.

Citation
2018 TCC 115
Parties
Appellant/applicant: Metrobec Inc.; Respondent/applicant: Her Majesty the Queen
Court
Tax Court of Canada
Jurisdiction
Canada
Judgment Date
22 June 2018
Procedural Posture
Excise Tax Act (gst) Appeal / Pre Trial Motions (motions to Strike and Extension of Time to File Reply)
Outcome
Respondent's motion allowed in part; respondent granted extension to file reply; specified paragraphs of the notice of appeal struck; appellant's re-amended motion claims 1-3 dismissed; amended notice and reply deadlines ordered; costs in the cause.
Legal Topics
Extension of Time, Motion to Strike Pleadings, Reply Deadline (rule 44), Input Tax Credits, Statute Barred Assessment, Penalties (s.285 Eta), Costs
Source Language
English
Tax Law Administrative Law Procedural Law Extension of Time Motion to Strike Pleadings Reply Deadline (rule 44) Input Tax Credits Statute Barred Assessment +2 more

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Parties

Metrobec Inc.

Appellant/applicant

Her Majesty the Queen

Respondent/applicant

Procedural Posture

Excise Tax Act (gst) Appeal / Pre Trial Motions (motions to Strike and Extension of Time to File Reply)

Legal Issues

  1. 1 Whether the respondent should be granted an extension of time to file a reply under Rule 12 and Rule 44
  2. 2 Whether the respondent should be precluded from filing a reply and the allegations in the notice of appeal presumed true under Rule 44(2)
  3. 3 Whether specified paragraphs of the notice of appeal should be struck under Rule 53 for being irrelevant, argumentative, conclusions of law, or outside the Court's jurisdiction

Ratio Decidendi

The Court granted the Crown an extension of time to file a reply because the Hennelly criteria were satisfied (intent to litigate, some merit, no demonstrated prejudice, reasonable explanation for delay) and therefore preclusion and the presumption under Rule 44(2) did not apply; the Court struck specified paragraphs from the notice of appeal under Rule 53 because they were argumentative, conclusions of law, irrelevant to the Court's jurisdiction (including QST and alleged Minister misconduct) or did not plead material facts; the appellant was ordered to re-file an amended notice within 30 days and the respondent to file a reply within 30 days of service, with costs in the cause.

Court Disposition

Respondent's motion allowed in part; respondent granted extension to file reply; specified paragraphs of the notice of appeal struck; appellant's re-amended motion claims 1-3 dismissed; amended notice and reply deadlines ordered; costs in the cause.

Orders

  • Respondent's motion to strike and for extension of time is allowed in part
  • Claims 1, 2 and 3 of the appellant's re-amended motion are dismissed