This review of criteria for judicial review of a CRA decision refusing a late adjustment (ITA s. 152(4.2)) includes a discussion (para. 17) of when the Court will consider affidavit evidence that goes beyond the documents before the CRA reviewer who made the decision.
[22] In the present case, the decision made under subsection 152(4.2) of the ITA is a discretionary one. Subsection 152(4.2) of the ITA does not provide the Applicant with an entitlement to relief; on the contrary, it only gives the Applicant “a right to ask the Minister to exercise his discretion to reassess after the expiration of the normal reassessment period”(Abraham at para 26). The scope of judicial review in respect of a decision made under subsection 152(4.2) is, therefore, “quite narrow”(see: LeBlanc at para 25); and as noted by the Federal Court of Appeal in Barron v. Canada (Minister of National Revenue – M.N.R.), [1997] FCJ No. 175 (QL) at para 5, [1997] 2 CTC 198, when an application for judicial review concerns a decision made in the exercise of the Minister’s discretion under subsection 152(4.2), the court may intervene and set aside the decision under review “only if that decision was made in bad faith, if its author clearly ignored some relevant facts or took into consideration irrelevant facts or if the decision is contrary to law.”
David Anthony v. Canada (National Revenue) 2016 FC 955 (Boswell J)