Almadhoun v. R. – FCA: Cross-appeal allowed striking Tax Court Judge’s obiter comments from actual Judgment

Almadhoun v. R. – FCA:  Cross-appeal allowed striking Tax Court Judge’s obiter comments from actual Judgment

Almadhoun v. Canada (May 5, 2018 – 2018 FCA 112, Near, De Montigny (Author), Laskin JJ.A.).

Précis:   This case dealt with Ms. Almadhoun’s claim for the Canada Child Tax Benefit (CCTB).  She was unsuccessful before the Tax Court and appealed to the Federal Court of Appeal.  The Crown filed a cross-appeal seeking to strike a portion of the Tax Court judgment that referred the matter back to the Minister so that “taxpayer relief in the form of a waiver of any applicable interest and penalties under the Act and also a remission of taxes pursuant to the Financial Administration Act” may be “seriously consider[ed]”.  The Court of Appeal dismissed the appeal but allowed the cross-appeal on the basis that such obiter comments should not form part of the Tax Court’s actual judgment.  There was no order as to costs.

Decision:   It is not uncommon for Tax Court Judges to include comments to the effect that the Minister should consider granting discretionary relief to an unsuccessful appellant for any variety of reasons (and sometimes to go so far as to suggest an amendment to the legislation).  In this case the unusual element was that the Tax Court Judge included his comments directly in his Judgment, not only as part of the Reasons.  The Crown’s cross-appeal argued that such comments did not properly belong in a Judgment.  The Federal Court of Appeal agreed:

[35]  A judge is certainly entitled to express his or her views on issues that are not, strictly speaking, essential to the determination of the matter he or she has to decide (Samson v. Minister of National Revenue, [1943] Ex. C.R. 17 at para. 17, [1943] 2 D.L.R. 349; Celliers du Monde Inc. v. Dumont Vins & Spiritueux Inc., [1992] 2 F.C. 634 at para. 12, 139 N.R. 357 (F.C.A.); Abbott Laboratories v. Canada (Minister of Health), 2006 FC 69 at paras. 16-17, [2006] F.C.J. No. 91 (Q.L.)). Such opinions, or obiter dicta, are often helpful in suggesting to Parliament avenues for reform, in offering a judge’s views as to how the common law could or should evolve, or more prosaically in expressing the judge’s discomfort with the result reached (J.J. George, Judicial Opinion Writing Handbook (Buffalo: William S. Hein & Co., Inc., 2007) at 331 and 351-352). This is precisely what Justice Lamarre did in her reasons for the decision relied upon by the Judge. Interestingly, I note that Justice Lamarre did not repeat in her judgment the remarks quoted by the Judge here, and merely stated that the appeal from the redetermination of the CCTB was dismissed.

[36]  I am therefore of the view that the Judge should not have sent the matter back to the Minister so that he may consider taxpayer relief. While he was entitled to express his views about the impact of the CRA’s error and the fact that relief should be considered in his reasons, he should have limited himself, in the judgment, to dismissing the appeal. The cross-appeal should therefore be allowed.

V.  Conclusion

[37]  For all of the foregoing reasons, I would dismiss the appeal and allow the cross-appeal. Rendering the decision that should have been given, the Tax Court judgment should read:

The appeal from the redeterminations issued by the Minister of National Revenue under the Income Tax Act on July 18, 2014 in respect of Canada Child Tax Benefits for the Appellant’s 2010, 2011 and 2012 base taxation years is dismissed, without costs.


In the result the appeal was dismissed and the cross-appeal allowed.  There was no order as to costs.