…the Provincial
Tax Commissioner requests that the Commission review, and either rescind or
vary its decision in this matter with respect to the issue of an appellant's
right to raise additional grounds of appeal once the limitation period for
filing a notice of appeal has passed. In the alternative, the Provincial Tax
Commissioner would seek clarification of the Commission's decision with
respect to this issue.
At paragraph 21
of its decision, the Commission held as follows:
'The
Commission therefore finds and concludes that an appellant may raise issues
that were not specifically set out in its Notice of Appeal to the Commission
provided the issues were raised in the appellant's initial objection to the
Tax Commissioner.'
While the
Provincial Tax Commissioner concedes that MRS' Notice of Objection [Exhibit
R-1-B] Tab 2, p.3] included an objection to the tax assessed on the
acquisition of office equipment by MRS, the objection was not on the ground
that the period being assessed was outside the limitation period prescribed by
s. 38 of the Revenue Tax Act Regulations. In fact, the Notice of Objection
indicates that the transfer in question took place on September 1, 1995 which
date is within the allowable assessment period.
To assist the
Provincial Tax Commissioner in determining what may and may not be raised on
an appeal, we would request that the Commission provide some guidance on how
it applied its finding in paragraph 21 of the decision with the facts as
related to the office equipment transfer.
Tax Commissioner's application, dated February
5, 2002, pp. 1-2.
[4]
In a subsequent written submission, dated March 5, 2002, the Applicant
clarifies its application as follows:
…the [Tax
Commissioner's] request clearly relates to an error that the [Tax
Commissioner] feels the Commission made in its decision which error calls for
a review and clarification from the Commission.
Tax Commissioner's written submission to the
Commission, dated March 5, 2002, p.1.
[5] The Respondent
herein, MR&S Management Inc. ("MR&S"), the appellant in the above appeal, submits that the Applicant has not made a
prima facie
case for review and that there are no changed circumstances that would warrant
a review. In a written submission dated February 28, 2002, MR&S describes the
minimum criteria the Commission has established for a review and argues that
the Applicant:
. . . has not
provided any indication of changed circumstances but has merely requested that
the Commission review and either rescind or vary its decision with respect to
the issue of an appellant's right to raise additional grounds of appeal. The
Commission has heard argument and evidence on the matter and has rendered its
decision. Section 12 is not to be invoked to re-argue the case. The [Tax
Commissioner] had every opportunity to raise the argument advanced in its
letter of February 5, 2002 at the time of the hearing and in closing and
rebuttal argument.
MRS written submission to the Commission, dated
February 28, 2002, p.2.
2. Discussion
[6] It is
well established that the Commission will only consider reviewing a decision
where a
prima facie case for
review has been made. As has often been noted by the Commission, the power to
review should only be exercised to correct an error or to meet changed
circumstances that are shown to be material.
[7] In
Commission Order UT95-2, dated June 28, 1995, the Commission, in discussing an
application for review of Commission Order UT94-2, made the following
comments:
In an Order
dated May 2, 1990, the former Public Utilities Commission addressed the issue
of whether minimum criteria should be met before it proceeded with a review or
rehearing:
'The Commission is of the
opinion that, as a matter of law and practicality, minimum criteria must be
satisfied before the Commission will proceed with a review or rehearing under
s.16 of the Public Utilities Commission Act. We agree with the National Energy
Board in Newfoundland and Labrador Hydro, supra, that the power to review is a
discretionary and unusual one which should be exercised sparingly and that the
onus is on the Applicant to satisfy the Commission that a prima facie case for
review exists in the particular circumstance of any case.
What, then,
constitutes, a prima facie case?
Case law appears
to support the proposition that the Commission's power to review should be
exercised only to correct an error by the Commission or to meet changed
circumstances. Changed circumstances may encompass either a situation which
has developed after the decision or where new evidence emerges which was not
known or available at the time the original evidence was adduced. Changed
circumstances must be material.'
