Tele-Mobile Company Partnership et al. v. Canada Revenue Agency, 2011 FCA 89

• Judge: Blais, C.J., Sharlow and Stratas, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: March 08, 2011
• Jurisdiction: Canada (Federal)
• Citations: 2011 FCA 89;(2011), 417 N.R. 261 (FCA)

Tele-Mobile Co. v. CRA (2011), 417 N.R. 261 (FCA)

MLB headnote and full text

Temp. Cite: [2011] N.R. TBEd. MR.050

Canada Revenue Agency (appellant) v. Tele-Mobile Company Partnership, Telus Communications Company Partnership, Telus Communications Inc., 1219723 Alberta Ltd. and MTS Allstream Inc. (respondents)

(A-311-10; 2011 FCA 89)

Indexed As: Tele-Mobile Company Partnership et al. v. Canada Revenue Agency

Federal Court of Appeal

Blais, C.J., Sharlow and Stratas, JJ.A.

March 8, 2011.

Summary:

The Canada Revenue Agency (CRA) informed Telus that fees for international telecommunication roaming services were subject to GST. Telus applied for an order of prohibition to prevent the CRA from proceeding with assessments or reassessments regarding international roaming services. In its materials in response, the CRA filed the affidavit of Trattner, a manager. On cross-examination, Trattner was unable to answer a series of questions and, subsequently, refused to inform herself of the answers. Telus moved for an order to compel Trattner to inform herself and to answer the questions, as well as to provide a series of relevant documents. A Prothonotary granted the motion. The CRA appealed the Prothonotary's order and moved to strike Telus' application on the basis that the court could not grant the relief sought.

The Federal Court, in a decision reported at 373 F.T.R. 206, dismissed the appeal from the Prothonotary's order and denied the motion to strike Telus' application. The CRA appealed from the denial of its motion to strike.

The Federal Court of Appeal allowed the appeal, striking Telus' application for prohibition.

Administrative Law - Topic 3357

Judicial review - Practice - Interlocutory proceedings (incl. application to strike) - [See Administrative Law - Topic 6411 ].

Administrative Law - Topic 6411

Judicial review - Prohibition - General principles - When remedy not available - The Canada Revenue Agency (CRA) informed Telus that fees for international telecommunication roaming services were subject to GST - Asserting that if it was assessed for GST, unfair and onerous obligations and financial hardships would be visited on it, Telus applied for an order of prohibition to prevent the CRA from proceeding with assessments or reassessments regarding international roaming services - The CRA moved to strike the application on the basis that the court could not grant the relief sought - The motion was denied on the basis that Telus' application was not clearly bereft of any chance of success - The Federal Court of Appeal allowed the CRA's appeal, striking Telus' application - If prohibition was granted, the CRA would be obligated to forgive a tax liability that it believed was present solely because of alleged hardship - The court could not stop the CRA from carrying out its statutory duty under the Excise Tax Act to assess GST payable by law merely because doing so would impose hardships on the taxpayer - It was plain and obvious that Telus' application could not succeed.

Courts - Topic 4021.1

Federal Court of Canada - Jurisdiction - Federal Court - Decisions of federal boards, commissions or tribunals (incl. ministers) - [See Administrative Law - Topic 6411 ].

Crown - Topic 685

Authority of Ministers - Exercise of - Administrative decisions - Appeals or judicial review - [See Administrative Law - Topic 6411 ].

Sales and Service Taxes - Topic 4952

Goods and services tax (incl. harmonized sales tax) - Assessment - Authority - [See Administrative Law - Topic 6411 ].

Counsel:

Wendy Burnham and Deborah Horowitz, for the appellant;

William Innes and Chia-Yi Chua, for the respondents.

Solicitors of Record:

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

Fraser Milner Casgrain LLP, for the respondents.

This appeal was heard at Toronto, Ontario, on March 8, 2011, by Blais, C.J., Sharlow and Stratas, JJ.A., of the Federal Court of Appeal. On the same date, Stratas, J.A., delivered the following reasons for judgment orally for the court.