Despite Potential Prejudice to Taxpayer, Motion for Further Adjournment Pending Potential Retroactive Legislation Not Granted.
Justice Woods denied a motion by Edwards to adjourn the hearing of the appeal until proposed retroactive legislation that could provide partial relief in his (and others’) case(s) is enacted.
The Court referred to the decision in Ariston Realty Corp. v Elcarim Inc. (2007), 51 CPC (6th) 326 (Ont. S.C.), and quoted:
 Depending on the circumstances of each case, to judicially exercise the discretion to grant or refuse an adjournment, a judge or master may need to weigh many relevant factors including:
- the overall objective of a determination of the matter on its substantive merits;
- the principles of natural justice;
- that justice not only be done but appear to be done;
- the particular circumstances of the request for an adjournment and the reasons and justification for the request;
- the practical effect or consequences of an adjournment on both substantive and procedural justice;
- the competing interests of the parties in advancing or delaying the progress of the litigation;
- the prejudice not compensable in costs, if any, suffered by a party by the granting or the refusing of the adjournment;
- whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment were refused;
- the need of the administration of justice to orderly process civil proceedings; and
- the need of the administration of justice to effectively enforce court orders.
The Court also referred to the decision in Johnson & Johnson Inc. v Boston Scientific Ltd.,2004 FCA 354, it was stated at para. 3:
[…] it is a rare circumstance where the Court will decline to proceed because of anticipated legislative changes.
The Court recognised potential prejudice to the taxpayer in the form of not being able to avail itself of retroactive legislation or potential bargaining position improvement, but stated that there were reasons not to grant the motion. Approximately 18,000 taxpayers participated in this donation scheme, involving about $500 Million in donations, with about 8,000 having been reassessed by the CRA.
Other appeals are awaiting the outcome of this case, and further delay was not warranted especially since the taxpayer could ask the trial judge to exercise the discretion to provide delay if circumstances warranted it. However, it was unlikely that the legislation would be enacted soon.
– Sas Ansari, BSc BEd PC JD LLM PhD (exp) CPA In-Depth Tax 1, 2 &3
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