Judicial Review in Federal Court
If CRA denies, for example, your voluntary disclosure or taxpayer relief application, you first can ask CRA to conduct another review, referred to as a second-level review. This will give you the opportunity to submit a stronger application for review by another CRA individual. If this fails, the next step is to apply to the Federal Court for judicial review of CRA’s decision.
Enabling Legislation & Limitation Period
The Federal Court’s authority to conduct judicial review exists pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F-7.
Upon receipt of CRA’s decision, a taxpayer has 30 days to apply for judicial review by the Federal Court. According to subsection 18.1(2):
(2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.
Extension of Time to File the Application for Judicial Review
An extension beyond the initial 30-day deadline for judicial review can be requested. A motion for extension of time can be submitted to the Federal Court. Extensions are not considered lightly and it is vital an expert motion is prepared for consideration by the Federal Court judiciary.
What to Include in the Judicial Review Application?
There must be a “ground of review” for the taxpayer to rely upon. Per subsection 18.1(4) of the Federal Courts Act, the grounds to consider are whether CRA:
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
Part 5, Rules 300 – 319 of the Federal Court Rules, SOR/98-106, details the specifics of the judicial review application and process. The application, initiated with Form 301, must contain details of the CRA decision and the relief sought by the taxpayer. Importantly, the applicant must diligently outline the ground(s) of review they are relying upon.
Contact us to schedule a free consultation with a Tax Lawyer. We will review your facts and circumstances and advise you of your options.
SpenceDrake Tax Law