In Brown v R, 2014 FCA 301, Webb JA had no trouble dismissing the taxpayer’s claim that the Income Tax Act (Canada) was void for uncertainty because, for example, it did not provide an adequate definition of “person”.
The Court, however allowed the taxpayer’s appeal from orders of the Tax Court striking the portion of his notices of appeal that disputed whether the Minister should have assessed gross negligence penalties. Webb JA pointed out that, under subsection 163(3), the Minister has “the burden of establishing the facts justifying the assessment of the penalty”. The Court wrote:
[20] Therefore the Minister, and not Mr. Brown, would have the burden of establishing the facts justifying the assessment of the gross negligence penalties imposed for 2009 and 2010. Since the only documents filed in these matters at the Tax Court of Canada were the notices of appeal (and amended notices of appeal) filed by Mr. Brown, it is not plain and obvious that the Minister will be successful in establishing the facts justifying the assessment of the gross negligence penalties. Since this is the Minister’s burden, there are no material facts that Mr. Brown would need to allege (and then have the onus to prove) in his notices of appeal.
The Court also set aside the awards of costs made by the Tax Court and awarded the taxpayer his costs in the Tax Court and the Federal Court of Appeal.
