In Rae v. Canada (National Revenue), 2015 FC 707 (CanLII), Ms. Rose Marie Joan Rae had invested in what CRA terms an “abusive charity gifting tax scheme”.  She filed her 2013 tax return in 2014 and has yet to receive her Notice of Assessment from CRA.    Ms Rae wanted to create a class action against CRA for herself and others.  Ms Rae wanted to force CRA to issue the Notice of Assessment.  The Court ultimately rejected the class action proposal.  

The Court had concerns about the scope of the class that would be included, and the court was concerned that a secret third-party was funding the litigation and Ms. Rae would not identify that third-party funder.  The Court also rejected the Ficek case as governing this issue.  The Court found that it is “tied to the facts of that case, and I am satisfied that the factual findings and rationale in Ficek cannot be transposed here.”  It is also interesting that Ms Rae wanted to establish the class by having CRA provide her with a list of people who CRA has not issued the Notice of Assessment to.   This would violate the confidentiality requirements of s. 241 and the Court rejected that idea. In this decision the court is not deciding the merit of the issue of whether CRA should issue the Notice of Assessment, only that it will not be a class action.   

Here are some excerpts from the case:

[4]               The foundation for this motion is an application brought by Ms. Rae for a writ of mandamus requiring the Minister to comply with section 152 of the Income Tax Act, RSC 1985, c 1 (5th Supp.) [the ITA]. According to section 152 of the ITA, the Minister shall, with all due dispatch, examine a taxpayer’s return of income for a taxation year, assess the tax for the year, the interest and penalties, if any, payable and determine the amount of refund payable to the taxpayer or the amount of tax payable by said taxpayer. Ms. Rae is therefore asking the Minister to assess her and the other proposed members of the class’ 2013 tax returns forthwith, to issue a corresponding tax assessment and send the proper Notice of Assessment. …

[10]           On July 24, 2014, Ms. F. Caligiuri, Manager at the Compliance Service Initiative Branch in the Winnipeg Tax Center of the CRA, wrote to Ms. Rae, advising her that her 2013 income tax and benefit return had not been assessed as the CRA was reviewing her donation claim related to a gifting tax shelter. The letter also indicated that the CRA was undertaking an audit of the associated tax shelter gifting arrangement, and that it could take up to two years to complete this audit. 

[11]           Ms. Caligiuri briefly outlined the history and general outcome of these audits and indicated the timeline of the interest that would be paid, or claimed, depending on the outcome. Alternatively, the CRA suggested that Ms. Rae could withdraw her donation claim and agree to a proposed waiver agreement which would allow for the assessment of her 2013 tax return prior to the completion of the audit. In substance, the proposed waiver agreement required that Ms. Rae withdraw her claim to the donation tax credit for the 2013 taxation year with respect to her contribution in the Pharma Gift 2013, and that she waived any right of objection or appeal related to the issue of her eligibility to said claim for taxation year 2013. Ms. Rae did not agree to this waiver. …

[42]           The Minister submits that in assessing whether Ms. Rae is fairly and adequately able to represent the interests of the class, the Court must consider her motivations, whether she will vigorously and capably prosecute the interests of the class, her capacity to bear any costs that she may incur and the competence of her counsel (Dutton at para 41). The Minister asserts that an adequate representative applicant must control the litigation, and that said representative does not control the litigation if she receives funding for the litigation from a third party. According to the Minister, a third-party funding agreement should not operate secretly.

[43]           Ms. Rae refused to answer some of the Minister’s questions during her cross-examination, in particular, questions related to possible third-party funding. The Minister submits that given this refusal, it may be inferred that a third party is funding the litigation.

[44]           The Minister submits that if a third-party is funding the litigation, Ms. Rae may have ceded control to a third-party or allowed them to have give influence over the litigation, and she would thus not be an adequate representative, as she would not have the control of the litigation.