- Atwater 111 -
[8] The jurisdiction of the Tax Court of Canada is set out in
section 12 of the Tax Court of Canada Act R.S.C. 1985, c.T-2
The court has exclusive original jurisdiction to hear and determine
references and appeals to the Court on matters arising under the
Canada Pension Plan, the Cultural Property Export and Import Act,
the Employment Insurance Act, Part IX of the Excise Tax Act, the
Income Tax Act, the Old Age Security Act, and the Petroleum and
Gas Revenue Tax Act, where references or appeals to the court are
provided for in those acts.
It is to be noted that the jurisdiction of the Tax Court in relations to
matters arising under the Income Tax Act is exclusive.
…
[12]
Even if I am wrong in my conclusion, even if the power of
this court included the power to adjudicate the matter in issue here, I
would defer to the Tax Court of Canada for two reasons. The first
has to do with respect for the laws of Canada, and the second relates
to concepts of expertise.
[13]
On the first point, I agree with Noel, J., of the Federal Court
of Canada in Resources Orco Inc. et al v. Minister du Revenu
national (1994), 88 F.T.R. 99 (T.D.)
“The Supreme Court of Canada has on several occasions held that
when a disputed point is before a lower court there is no basis for a
declaratory action. It did so in Therrasses Zarolega Inc. et al. v.
Regie des Installations Olympiques, [1981] 1 S.C.R. 94; 38 N.R. 411,
relying on the decision of the House of Lords in Barraclough v.
Brown, [1987] A.C. 615. It had done likewise several years
previously in Lethbridge (City) v. Canadian Western Natural Gas,
Light, Heat & Power Co., [1923] S.C.R. 652. Those judgments all
turned on compliance with the intent of Parliament. As Anglin, J.,
noted in the last case, at p. 659:
‘Out of respect to the Legislature and to carry into effect the
spirit, if not the letter, of its policy, as expressed in the Public
Utilities Act, the courts, although they may not have been
denuded of jurisdiction to entertain such an action as that now
before us, should, I think, decline to exercise that jurisdiction,
if they possess it, and should relegate the parties to the board
which the legislature has constituted to deal with such cases
and has clothed with powers adequate to enable it to do full
and complete justice in the premises.’
“On principle, therfore, a court will not interfere by a declaratory
action in the jurisdiction assigned to a specialized tribunal, even if it
has power to do so ...”
[14]
On the second point I agree with Abella, J.A., in Reza v.
Minister of Employment and Immigration, (1992), 58 O.A.C. 377; 98
D.L.R. (4th) 88, 101.