Canada v. Amex Bank of Canada, (2008) 333 F.T.R. 259 (FC)

• Judge: Frenette, D.J.
• Court: Federal Court (Canada)
• Case Date: July 09, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 333 F.T.R. 259 (FC);2008 FC 972

Can. v. Amex Bk. (2008), 333 F.T.R. 259 (FC)

MLB headnote and full text

Temp. Cite: [2008] F.T.R. TBEd. AU.016

Her Majesty the Queen (applicant) v. Amex Bank of Canada (respondent)

(T-2208-07; 2008 FC 972)

Indexed As: Canada v. Amex Bank of Canada

Federal Court

Frenette, D.J.

August 27, 2008.

Summary:

The applicant applied for an order requiring that the respondent bank provide the applicant the information and documents set out in the requirement issued under s. 289.1(1) of the Excise Tax Act. Specifically, the applicant was requesting the production of the following information and documents relating to American Express credit card number 3733-202207-31: (a) the name of the individual that held the primary card for the supplementary card, number 3733-202207-31013, that was held by Mohamad Nizam; (b) the name of the business associated with the primary cardholder; (c) the mailing address of the primary cardholder; (d) a copy of the original application for this membership and any documents relating to requests for supplementary cards; (e) the names of all supplementary cardholders tied to the primary card.

The Federal Court allowed the application.

Sales and Service Taxes - Topic 5210

Goods and services tax (incl. harmonized sales tax) - Administration, collection and enforcement - General - Requirement to provide documents or information - The applicant alleged that Mega Distributors purchased cigarettes from a wholesaler, sold them at discounted prices to Windsor area retailers and did not collect the GST - Mega then allegedly declared tax free cigarette sales to McNaughton (a status Indian), filed GST credit returns calculating input tax credits on GST paid to its wholesaler, and claimed a refund of net tax - Mega asserted that it had been defrauded by employees, namely Nizam, through credit card purchases of cigarettes - The applicant applied for an order requiring that the respondent bank provide the applicant the information and documents set out in the requirement issued under s. 289.1(1) of the Excise Tax Act - Specifically, the applicant was requesting the production of the following information and documents relating to American Express credit card number 3733-202207-31: (a) the name of the individual that held the primary card for the supplementary card, number 3733-202207-31013, that was held by Nizam; (b) the name of the business associated with the primary cardholder; (c) the mailing address of the primary cardholder; (d) a copy of the original application for this membership and any documents relating to requests for supplementary cards; (e) the names of all supplementary cardholders tied to the primary card - The respondent asserted that the applicant was seeking information concerning the primary cardholder of the card, and that the applicant had given no indication to the respondent as to that identity of that individual - Therefore, that person was an unnamed person and the applicant could not impose on a third party like the respondent the requirement to provide information or documents relating to that unnamed person without prior judicial authorization - The Federal Court allowed the application - This was the case of an unrelated third party (the respondent) who was not the subject of an investigation being asked to provide information about an unnamed party who was the subject of an investigation - The applicant had broad powers to obtain information required to apply the provisions of the Excise Tax Act and the Income Tax Act - Judicial authorization was not needed.

Cases Noticed:

Minister of National Revenue v. Marshall, [2006] F.T.R. Uned. 164; [2006] 3 C.T.C. 25 (F.C.), refd to. [para. 27].

R. v. McKinlay Transport Ltd. and C.T. Transport Inc., [1990] 1 S.C.R. 627; 106 N.R. 385; 39 O.A.C. 385; 68 D.L.R.(4th) 568, refd to. [para. 27].

Redeemer Foundation v. Minister of National Revenue, [2007] 3 F.C.R. 40; 354 N.R. 147; 2006 FCA 325, refd to. [para. 27].

Minister of National Revenue v. Cornfield (2007), 312 F.T.R. 81; 2007 G.T.C. 1482; 2007 FC 436, refd to. [para. 28].

Artistic Ideas Inc. v. Canada Customs and Revenue Agency, [2005] 2 C.T.C. 25; 330 N.R. 378; 2005 FCA 68, refd to. [para. 31].

Minister of National Revenue v. Morton, [2007] F.T.R. Uned. 325; [2007] 4 C.T.C. 108; 2007 FC 503, refd to. [para. 31].

AGT Ltd. v. Canada (Attorney General), [1997] 2 F.C. 878; [1997] 2 C.T.C. 275; 211 N.R. 220 (F.C.A.), refd to. [para. 31].

Minister of National Revenue v. Toronto-Dominion Bank, [2005] 2 C.T.C. 37; 332 N.R. 70; 2004 FCA 359, refd to. [para. 31].

Capital Vision Inc. et al. v. Minister of National Revenue (2002), 226 F.T.R. 159; 2002 FCT 1317, refd to. [para. 43].

Minister of National Revenue v. Advantage Credit Union (2008), 331 F.T.R. 252; 2008 FC 853, refd to. [para. 54].

Pfizer Canada Inc. et al. v. Canada (Minister of Health) et al., [2008] 1 F.C.R. 672; 312 F.T.R. 100; 2007 FC 446, refd to. [para. 54].

Redeemer Foundation v. Minister of National Revenue (2008), 377 N.R. 277; 2008 D.T.C. 6474; 2008 SCC 46, refd to. [para. 55].

Counsel:

Ronald MacPhee, for the applicant;

Graham Reynolds, for the respondent.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant;

Osler, Hoskin & Harcourt LLP, Toronto, Ontario, for the respondent.

This application was heard on July 9, 2008, at Toronto, Ontario, by Frenette, D.J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on August 27, 2008.