Markevich v. Minister of National Revenue, 2001 FCA 144

• Judge: Décary, Rothstein and Malone, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: February 26, 2001
• Jurisdiction: Canada (Federal)
• Citations: 2001 FCA 144;(2001), 270 N.R. 275 (FCA)

Markevich v. MNR (2001), 270 N.R. 275 (FCA)

MLB headnote and full text

Temp. Cite: [2001] N.R. TBEd. MY.069

Joe Markevich (appellant) v. Her Majesty The Queen in Right of Canada (respondent)

(A-174-99; 2001 FCA 144)

Indexed As: Markevich v. Minister of National Revenue

Federal Court of Appeal

Décary, Rothstein and Malone, JJ.A.

May 7, 2001.

Summary:

In 1998 Revenue Canada sent a letter to a taxpayer claiming that the taxpayer owed $770,583 in unpaid taxes assessed in the years up to 1986. The taxpayer applied for judicial review, seeking a declaration that the amount requested was not owing and an order restraining the Minister of National Revenue from issuing requirements to pay to the taxpayer's debtors. The taxpayer argued that the Minister of National Revenue's statutory collection powers were subject to a limitation period either in the Crown Liability and Proceedings Act (Can.) or in the relevant provincial statute.

The Federal Court of Canada, Trial Division, in a decision reported 163 F.T.R. 209, dismissed the taxpayer's application. The taxpayer appealed.

The Federal Court of Appeal allowed the appeal, set aside the decision of the Trial Division and allowed the judicial review application. The court declared that the Minister of National Revenue was prohibited from taking court action or statutory collection procedures to collect the taxpayer's tax debt because of the applicable limitation periods.

Crown - Topic 4152

Actions by and against Crown in right of Canada - Practice - Time - [See both Income Tax - Topic 9429 ].

Income Tax - Topic 9421

Enforcement - Limitation of actions - General - [See both Income Tax - Topic 9429 ].

Income Tax - Topic 9429

Enforcement - Limitation of actions - Requirements to pay - Section 32 of the Crown Liability and Proceedings Act (Can.) provided that "except as otherwise provided in this Act or in any other Act of Parliament, the laws relating to prescription and the limitation of actions in force in a province between subject and subject apply to any proceedings by or against the Crown in respect of any cause of action arising in that province, ... " - The Federal Court of Appeal interpreted s. 32 - The court held that "proceedings" in s. 32 included all legal processes in respect of a cause of action, whether court or otherwise, and in particular, all collection procedures under the Excise Tax Act and the Income Tax Act unless otherwise provided in those statutes - Therefore provincial limitation laws applied irrespective of the remedial steps chosen by the Minister to collect a tax debt - In arriving at its interpretation, the court looked at, inter alia, the wording of s. 32, prior cases, the legislative history of s. 32, the context of Part II of the Act and the French version.

Income Tax - Topic 9429

Enforcement - Limitation of actions - Requirements to pay - In 1998 Revenue Canada sent a letter to a taxpayer claiming that the taxpayer owed taxes for years up to 1986 - The taxpayer applied for judicial review, arguing that the Minister of National Revenue's power to issue requirements to pay was subject to a limitation period pursuant to s. 32 of the Crown Liability and Proceedings Act (Can.) - Section 32 provided that where there was no federal limitation period applicable, the provincial limitations laws applied to any proceedings by or against the Crown in respect of any cause of action arising in that province - The Federal Court of Appeal held that s. 32 was applicable resulting in provincial limitation laws applying irrespective of whether the Minister took court action or statutory collection procedure to collect the tax debt - In this case the collection prior to 1986 was statute barred.

Limitation of Actions - Topic 7401

Actions by the Crown - General - [See both Income Tax - Topic 9429 ].

Statutes - Topic 1806

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of one version by reference to the other - In interpreting the English version of s. 32 of the Crown Lia-bility and Proceedings Act (Can.), the Federal Court of Appeal looked to the French version - See paragraph 63.

Words and Phrases

Proceedings by or against the Crown in respect of any cause of action arising in that province - The Federal Court of Appeal discussed the meaning of this phrase as it was used in s. 32 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 - See paragraphs 31 to 66.

Cases Noticed:

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321, refd to. [para. 7].

Backman v. Minister of National Revenue (2000), 266 N.R. 246 (S.C.C.), refd to. [para. 26].

Continental Bank Leasing Corp. v. Minister of National Revenue, [1998] 2 S.C.R. 298; 229 N.R. 58, refd to. [para. 26].

Slattery (Bankrupt) v. Slattery, [1993] 3 S.C.R. 430; 158 N.R. 341; 139 N.B.R.(2d) 246; 357 A.P.R. 246, refd to. [para. 36].

Nowegijick v. Minister of National Revenue et al., [1983] 1 S.C.R. 29; 46 N.R. 41, refd to. [para. 36].

Domco Industries Ltd. v. Mannington Mills Inc. and Congoleum Corp. (1990), 107 N.R. 98; 29 C.P.R.(3d) 481 (F.C.A.), refd to. [para. 37].

Price (E.H.) Ltd. v. Minister of National Revenue, [1983] 2 F.C. 841; 47 N.R. 312 (F.C.A.), refd to. [para. 39].

Mark v. Canada (1991), 50 F.T.R. 157 (T.D.), refd to. [para. 43].

Willion v. Berkley (1851), 1 Plowd. 223; 75 E.R. 339, refd to. [para. 45].

Berardinelli v. Ontario Housing Corp. et al., [1979] 1 S.C.R. 275; 23 N.R. 298, refd to. [para. 52].

Statutes Noticed:

Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, sect. 32 [para. 11].

Income Tax Act, R.S.C. 1985 (5th Supp.), c. 2, sect. 222, sect. 225.1(1) [para. 11].

Income Tax Act, R.S.B.C. 1979, c. 190, generally [para. 67].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 17 [para. 45].

Limitation Act, R.S.B.C. 1996, c. 266, sect. 1, sect. 3(5) [para. 11]; sect. 9(1) [para. 66].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (3rd Ed. 1994), p. 343 [para. 45].

Mew, G., The Law of Limitations (1991), p. 53 [para. 64].

Sgayias, D., et al., The Annotated Crown Liability and Proceedings Act 1995 (1994), p. 136 [para. 47].

Williams, J.S., Limitation of Actions in Canada (2nd Ed. 1980), p. 4 [para. 7].

Counsel:

Ian Worland, for the appellant;

Judith Bowers, Q.C., and Carl Januszczak, for the respondent.

Solicitors of Record:

Douglas Symes & Brissenden, Vancouver, British Columbia, for the appellant;

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard in Vancouver, British Columbia, on February 26, 2001, before Décary, Rothstein and Malone, JJ.A., of the Federal Court of Appeal. Rothstein, J.A., delivered the following judgment for the court on May 7, 2001.