Federal Court


Civil Practice and Procedure

Disposition without trial

Stay or dismissal of action

Balance to be struck between avoiding needless expenditure of public resources in likely event matter became moot

Applicant was employee in unionized workplace who paid union dues to labour organization under s. 149.01 of Income Tax Act. In January 2017, applicant filed application for judicial review of December 2016 decision by Minister of National Revenue to waive reporting requirements for all labour organizations and labour trusts under Act for fiscal periods beginning in 2017. In February 2017, Minister brought motion to strike out application, or in alternative, to hold matter in abeyance pending passage of Bill C-4, subsequent to which matter would be moot as relevant sections of Act would be repealed by bill. Prothonotary did not accept ground for motion to strike but granted alternate relief, concluding that, although at time matter could not be declared moot, Parliament expressed clear intention to repeal s. 149.01 of Act and that it was reasonable to believe that this would occur by July 1, 2017. Even in absence of challenged waiver by Minister, earliest any union or trust would be required to report under s. 149.01 of Act was July 1, 2017. Prothonotary concluded that by staying application until that date struck appropriate balance between avoiding needless expenditure of resources in likely event that issue would become moot before any waiver took effect. Bill was passed in April 2017 and was returned to House of Commons for consideration of amendments. Applicant appealed prothonotary’s stay of application for judicial review until July 1, 2017. Appeal dismissed. Prothonotary did not err in law. As long as no party is unfairly prejudiced and it is in interests of justice, court should exercise its discretion against wasteful use of judicial resources. Prothonotary recognized that it was likely that by July 1, 2017, bill would have been passed, thereby repealing s. 149.01 of Act, and also recognized significance of date of July 1, 2017 being that, even in absence of challenged waiver by Minister, this was earliest possible date that any union or trust would be required to report under s. 149.01 of Act – Applicant could not suffer any prejudice before July 1, 2017. On practical level, applicant could not be prejudiced by stay as she would not be deprived of this information. Prothonotary recognized balance to be struck between avoiding needless expenditure of public resources in likely event that matter may become moot before waiver had practical effect and ensuring, if repealed legislation was delayed or failed, that matter could proceed without undue delay. Prothonotary considered factual circumstance in context of appropriate guiding principles and applied proper approach.

Bernard v. Canada (National Revenue) (2017), 2017 CarswellNat 2498, 2017 CarswellNat 6978, 2017 FC 536, 2017 CF 536, Cecily Y. Strickland J. (F.C.).

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