Rosenberg v. Canada (National Revenue)

Rosenberg v. Canada (National Revenue)

The motion to strike was dismissed because it was not plain and obvious that the plaintiff’s claims cannot succeed; however the court found the dispute is properly characterized as a matter for judicial review against a federal board (the CRA/Minister) and therefore converted the action into an application for judicial review, concluded the 30‑day limit did not strictly apply to the continuing matter, and ordered the matter be managed and scheduled for a merits hearing.

Citation
2015 FC 549
Parties
Plaintiff: Michael Rosenberg; Defendant (acting for the Minister of National Revenue): Canada Revenue Agency
Court
Federal Court
Jurisdiction
Canada
Judgment Date
28 April 2015
Procedural Posture
Judicial Review (converted From Action) / Motion to Strike Heard; Order Converting Action to Application for Judicial Review and Referral to Case Management
Outcome
Motion to strike dismissed; action converted to application for judicial review; proceeding continued as specially managed and referred for case management.
Legal Topics
Audit Powers, Settlement/agreement Binding Effect, Jurisdiction, Motion to Strike (rule 221), Limitation Period and Extension of Time, Conversion of Proceedings (rules 56 57), Declaratory Relief and Injunctions, Section 231.1/231.7 Income Tax Act Procedure
Source Language
English
Tax Law Administrative Law Civil Procedure Audit Powers Settlement/agreement Binding Effect Jurisdiction Motion to Strike (rule 221) Limitation Period and Extension of Time +3 more

Case Brief

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Parties

Michael Rosenberg

Plaintiff

Canada Revenue Agency

Defendant (acting for the Minister of National Revenue)

Procedural Posture

Judicial Review (converted From Action) / Motion to Strike Heard; Order Converting Action to Application for Judicial Review and Referral to Case Management

Legal Issues

  1. 1 Whether the February 19, 2010 Agreement binds the Minister/CRA and prevents a new audit or reassessment for 2006-2007
  2. 2 Whether the Minister can waive or be contractually restricted from exercising statutory audit powers under the Income Tax Act
  3. 3 Whether the plaintiff’s action discloses any reasonable cause of action or is an abuse of process subject to striking under Rule 221

Ratio Decidendi

The motion to strike was dismissed because it was not plain and obvious that the plaintiff’s claims cannot succeed; however the court found the dispute is properly characterized as a matter for judicial review against a federal board (the CRA/Minister) and therefore converted the action into an application for judicial review, concluded the 30‑day limit did not strictly apply to the continuing matter, and ordered the matter be managed and scheduled for a merits hearing.

Court Disposition

Motion to strike dismissed; action converted to application for judicial review; proceeding continued as specially managed and referred for case management.

Orders

  • Motion to strike dismissed
  • Action converted into an application for judicial review