Justine Malone

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.

The appellant, a telecommunications company, filed GST returns claiming substantial tax refunds under the Excise Tax Act.

Following an audit, the Minister issued assessments disallowing input tax credits and imposing gross negligence penalties.

Rather than appealing to the Tax Court of Canada, the appellant brought an application for judicial review in Federal Court seeking declarations that the assessments breached procedural fairness, lacked an evidentiary foundation, and were issued for an improper purpose.

The Supreme Court of Canada unanimously dismissed the appeal, holding that the application was bereft of any possibility of success: the first two claims were properly within the Tax Court's exclusive jurisdiction as attacks on the correctness of assessments, the improper purpose claim was unsupported by any pleaded facts, and all three declarations sought would have had no practical effect given the absence of a live controversy apart from the correctness of the assessments.