The appellant taxpayer sought to challenge the Minister of National Revenue's discretionary decision under s. 247(10) of the Income Tax Act to deny a downward transfer pricing adjustment through an appeal of the associated reassessment to the Tax Court of Canada.
The majority held that the Minister's discretionary decision under s. 247(10) is qualitatively distinct from an 'assessment' within the settled meaning of that term, and falls outside the Tax Court's exclusive appellate jurisdiction; the Federal Court holds exclusive jurisdiction to judicially review such discretionary ministerial decisions pursuant to the Federal Courts Act.
Dow's argument that the decision could be appealed 'by necessary implication' as part of the assessment was rejected, as Parliament has consistently created express rights of appeal to the Tax Court where it intends that court to have jurisdiction over ministerial decisions.
The dissenters would have allowed the appeal, finding the Minister's mandatory exercise of discretion under s. 247(10) inextricably linked to the correctness of the assessment and reviewable in the Tax Court on a deferential standard.
Appeal dismissed with costs, Karakatsanis, Côté and Rowe JJ. dissenting.
