Citation: 2013 TCC 208
Date: 20130621
Docket: 2012-4293(IT)G
BETWEEN:
JACK KLUNDERT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Pizzitelli J.
[1]
The Respondent has
brought a motion to strike the Appellant’s Notice of Appeal and dismiss same
pursuant to sections 53 and 58 of the Tax Court of Canada Rules (General
Procedure) (the “Rules”) on the grounds the Notice of Appeal fails
to contain any proper pleading; this Court does not have jurisdiction to hear
the appeal, such Notice of Appeal is an abuse of process and is frivolous and
vexatious and that the issues in this Notice of Appeal have already been
determined in previous Ontario Court proceedings and hence issue estoppel
applies as well as the doctrine of collateral attack.
[2]
The Appellant disputes
the Respondent’s grounds for striking or dismissal on the grounds the Notice of
Appeal raises issues of law which are within the jurisdiction of this Court
that have not been addressed in any previous proceeding; namely, whether evidence
that should have been inadmissible in prior criminal proceedings for tax
evasion and the making of false statements that was not argued to be
inadmissible in such prior proceedings, violate the Appellant’s constitutional
rights pursuant to sections 7 and 8 of the Canadian Charter of Rights and
Freedoms (the “Charter”), and requests that the Court grant his
motion to amend his Notice of Appeal by also adding an additional request
for relief by quashing the reassessment on grounds of such constitutional
violation, or in the alternative, find such evidence to be inadmissible for the
purposes of this tax appeal.
[3]
The facts providing
context for the issues in dispute here are not themselves disputed. The
Appellant, an optometrist practising in Windsor, Ontario, either filed tax
returns showing nil income or failed to file tax returns between 1993 and 1997
taxation years and was investigated by audit at first and then subject to a
criminal investigation pursuant to which a warrant for search and seizure was
executed pursuant to section 487 of the Criminal Code, R.S.C. 1985, c.
C-46, as amended. The Appellant had three trials before the Ontario Superior
Court of Justice on tax evasion, two appeals before the Ontario Court of
Appeal, and leave to appeal to the Supreme Court of Canada was denied. The
third and last trial before the Ontario Superior Court of Justice, by jury, was
decided on May 20, 2010, in which the Appellant was convicted of tax evasion
under section 239 of the Income Tax Act (the “Act”); which
conviction was appealed to the Ontario Court of Appeal which dismissed his
appeal on September 12, 2011, and for which leave to appeal to the Supreme
Court of Canada was denied on April 5, 2012. Based on the findings of this
third trial, in which the Appellant was found to have failed to report
respective amounts of $241,625, $270,403, $434,931, $254,520 and $272,910 for
the years from 1993 to 1997, the Canada Revenue Agency (“CRA”) reassessed his
income taxes on exactly the same basis.
[4]
The material facts relied
upon by the Appellant in his Notice of Appeal are contained in paragraph (c)
thereof and are set out below:
1. On January 30, 1996 and April 1, 1996, the Canada Revenue
Agency served the Appellant with Requirements to Provide Information and
Documents, pursuant to subsection 231.2 of the Income Tax Act. This was
an exercise of the Canada Revenue Agency’s audit powers.
2. Between September 1996 and May 1997, the Appellant was the
subject of a criminal prosecution under the Income Tax Act for failure
to comply with the Requirements to Provide Information and Documents. On May 1,
1997, he was acquitted.
3. In June 1997, the Canada Revenue Agency wrote to the Ministry
of Health requiring it to produce a list of payments made to the Appellant by
the Ministry of Health on account of medical services rendered for the 1993 and
1994 tax years. This was an exercise of the Canada Revenue Agency’s audit
powers.
4. On March 25, 1999, the Canada Revenue Agency obtained and
executed a warrant to search Dr. Klundert’s home and business premises,
pursuant to Section 487 of the Criminal Code. This was the culmination
of a lengthy criminal investigation involving alleged offences under the Income
Tax Act.
5. Throughout 1999, the Canada Revenue Agency continued to use
its audit powers to gather information for the ongoing criminal investigation.
Requirements for Information were served on OHIP, the Windsor Laser Eye
Institute, the Bank of Montreal, and the Royal Bank.
6. On September 1, 1999, the Canada Revenue Agency wrote to the
Appellant’s secretary, Ms. Patricia Renaud, requiring her to provide
information about the Appellant’s optometry practice. This was yet another
exercise of the Canada Revenue Agency’s audit powers.
7. On March 13, 2001, the Agency wrote to Ann Barnes at the
Registration & Claims Branch of the Ministry of Health, with a further
Requirement for Information in regard to payments made to Dr. Klundert. This
too was an exercise of the Canada Revenue Agency’s audit powers.
8. The evidence gathered by the Canada Revenue Agency using its
audit powers was used to further an extensive criminal investigation against
Dr. Klundert.
[5]
The facts as pleaded
contain no specific facts as to what information was improperly used, only
broad statements that information was sought and collected from third parties.
In argument, the Appellant suggested the Appellant was cross‑examined on
such third party information in the first trial but provides no details or
relies on any specific facts in the Notice of Appeal.
[6]
The Appellant’s
position is best summarized in his Statement of Facts contained in paragraphs 2
and 3 of his written submissions with respect to the motions:
2. To summarize the facts put forward by the Appellant, there
was an overlap of at least 54 months (September 1996 to March 2001) in which
the Appellant was subject to both audit and investigative powers of the
Canada Revenue Agency. During this time, a Criminal Code search
warrant was executed (on March 25, 1999), which provided the basis for a
criminal prosecution. Throughout 1999, the Canada Revenue Agency pursued an
extensive audit of the Appellant, serving Requirements for Information on OHIP, the Windsor Laser Eye Institute, the Bank of Montreal, the Royal Bank,
and the Appellant’s secretary, Patricia Renaud. As late as March 31, 2001, a
year before the Appellant’s first criminal trial, the Canada Revenue
Agency was using its civil audit powers to obtain information about his
finances.
3. In response to the “other material facts” brought forward by
the Respondent, and specifically paragraphs 2(e) and 2(f) of the Respondent’s
Written Submissions, it is the position of the Appellant that any admissions
elicited at his criminal trials were the result of a criminal process in which
evidence collected using the Canada Revenue Agency’s civil audit powers were
put to him in cross-examination. The admissions described only serve to
highlight the overlap between the audit and investigative powers of the Canada
Revenue Agency in this case.
[7]
For sake of clarity and
context, the above referenced paragraphs 2(e) and 2(f) in the Respondent’s Written
Submissions should in fact be a reference to paragraphs 4(e) and 4(f) which read
as follows:
e) On November 14, 2008, MacFarland J.A. on behalf of the Court
of Appeal for Ontario, on the appeal of the June 26, 2006 acquittal of the
Appellant on the charge of income tax evasion for the 1993 to 1997 taxation
years, stated in the reasons for judgement: “It was admitted that during the
relevant period the total income not declared by the respondent, including some
interest and RRSP income, was $1,474,389.”
f) On May 20, 2010, the Appellant was convicted, after a third
trial, by Mr. Justice Patterson of the Superior Court of Justice, sitting
with a jury, of income tax evasion under s. 239 of the Act, in respect
of his failure to report income for the 1993, 1994, 1995, 1996 and 1997
taxation years (the “Taxation Years”), in the respective amounts of
$241,625, $270,403, $434,931, $254,520 and $272,910.
[8]
In essence argues the
Appellant, the information obtained under the CRA’s investigative powers were
used in pursuance of its criminal investigation and trial contrary to the
principles enunciated in the Supreme Court of Canada’s ruling in R v
Jarvis, [2002] 3 S.C.R. 757, which found that the use of audit functions to
further criminal investigation infringes upon sections 7 (the right to life,
liberty and the security of the person) and 8 (the right to be secure against
unreasonable search and seizure) of the Charter, and accordingly, any
evidence obtained from such improper searches, including any of the admissions
made by the Appellant in any of the criminal proceedings should be excluded as evidence
under subsection 24(2) of the Charter and that such violation is serious
enough for the Tax Court of Canada to exercise its discretion to quash the
reassessment in full. No material facts were pleaded in the Notice of Appeal to
lay before the Court the specific violations complained of.
[9]
It should be noted,
however, that the Jarvis case was decided in the same year and just
after the Appellant’s first criminal trial and of course before the first
appeal to the Ontario Court of Appeal or the other two trials. The third trial,
on which the Appellant was finally convicted by jury occurred in 2010, many
years after the Jarvis decision, which was upheld by the Ontario Court
of Appeal and for which leave to appeal to the Supreme Court of Canada was
denied, was the basis for the CRA’s reassessment as above noted. The Appellant
concedes he has no knowledge as to why previous counsel who was a reputable
criminal lawyer did not raise the Charter argument he now raises in any
of the criminal proceedings relating to the Appellant, all but one of which was
post Jarvis. Nonetheless, the Appellant argues that an alleged
violation of the Jarvis principles, albeit prior to the Jarvis
decision, and notwithstanding no argument was made thereon in subsequent trials
and appeals, including the final jury trial in 2010 and its subsequent appeal,
should be considered as a live issue before this Court, since it was not dealt
with beforehand and hence the Respondent’s argument of issue estoppel cannot
apply to the undetermined Charter issues that are still live before the
Court.
The Law
[10]
Under paragraphs 53(b)
and (c) of the Rules, a Court may strike out or expunge all or part of a
pleading on the ground it is scandalous, frivolous or vexatious, or is an abuse
of the process of the Court.
[11]
Under paragraph 58(1)(b)
of the Rules, a party may apply to the Court to strike out a pleading
because it discloses no reasonable grounds for appeal or apply under paragraph
58(3)(a) of the Rules to have an appeal dismissed on the grounds
the Court has no jurisdiction over the subject matter of the appeal.
[12]
There is no dispute
between the parties that to strike out a pleading, a high standard must be met;
namely as set out by the Supreme Court of Canada in Hunt v Carey
Canada Inc., [1990] 2 S.C.R. 959 at page 980 that “it must be plain and
obvious, “that the pleading in question” discloses no reasonable cause of
action”.
[13]
The Courts have held
that failure to disclose a reasonable cause of action may occur for many
reasons, including seeking relief that does not fall within the jurisdiction of
this Court as was the case in Hardtke v Canada, 2005 TCC 263, 2005 DTC
676, or due to doctrines of issue estoppel, collateral attack and abuse of
process that prevent this Court form relitigating a case determined by another
court having competent jurisdiction, or simply failing to plead any material
facts that evidence a cause of action. In the case at hand, the Respondent has
attacked the Appellant’s Notice of Appeal on all these grounds so we will
proceed to analyse the grounds.
Pleadings Disclose No Cause of Action and No
Jurisdiction to Grant Relief Sought
[14]
The Respondent argues
that the Appellant has pled no facts that would enable the Court to exercise its
powers under section 171 of the Act to dismiss the appeal or allow it
and vary, vacate or send the reassessment back to the Minister of National
Revenue (the “Minister”) for reconsideration and reassessment. Indeed, the Appellant
has not challenged the quantum of the reassessment, or the component part of
such reassessment such as the level of expenses allowed, in any way. It would
appear that no facts were pleaded, which if found true, would give the Court
grounds to exercise any of its section 171 powers to allow the appeal in
respect of the reassessments in issue and hence at first glance the Appellant
does not appear to have pleaded any material facts to give rise to any cause of
action; thus leaving a dismissal as the only power to be left for the Court to
exercise. The Respondent also argues that this Court has no jurisdiction
to grant the declaratory relief sought by the Appellant to exclude evidence
from the civil audit in this matter before the Court.
[15]
However, the Appellant
argues that the inferred violation of the Appellant’s Charter rights in
the first trial should be sufficient to allow and vacate or quash the appeal as
the Court has the power to exercise discretionary remedies pursuant to
subsection 24(2) of the Charter of Rights and in fact the Federal Court
of Appeal confirmed the broader powers of this Court in the event of such
violation in Canada v O’Neill Motors Ltd., [1998] 4 FC 180, wherein
Linden J.A. stated:
In
cases of evidence obtained by infringing the Charter, section 24 of the Charter
allows the award of a remedy other than the exclusion of evidence. In my view,
it is wrong to say, as counsel for the Crown does, that R. v. Therens
et al., supra, forbids any remedy other than the exclusion of evidence
where evidence is obtained unconstitutionally. Subsection 24(2) expressly permits
the exclusion of evidence as one remedy; it does not remove the general
authority given to the Court in subsection 24(1) to grant such remedy as is
“appropriate and just”. …
[16]
The Appellant also
refers to Campbell v The Queen, 2004 TCC 460, 2004 DTC 3502, in
which this Court, relying on O’Neill Motors above, vacated the
assessment when the only evidence that could sustain the assessment was, by
admission of the Crown, illegally obtained evidence that once excluded would
leave no evidence remaining on which the Minister could base its assessment.
[17]
It is clear then that
this Court has jurisdiction to grant not only declaratory relief in finding
evidence should be declared inadmissible where circumstances permit but also in
exercising its power to vacate an assessment under section 171 of the Act
where such inadmissible evidence leaves no evidence on which the Minister can
otherwise base its assessment.
[18]
The question then
remains as to whether the Appellant has pleaded sufficient facts, which if
found true, would enable the Court to quash or vacate the reassessment as the Appellant
effectively asks by seeking the remedy that any admissions and evidence
improperly admitted be inadmissible before this Court. The Appellant, of course,
specifically asks for the remedy of quashing the reassessment in his motion to
amend his Notice of Appeal which I treat as requesting it be vacated.
[19]
The problem I have is
that the pleadings cite chronological events only that may suggest a violation
if the Minister had the predominant purpose of eliciting the information for
criminal purposes as was the test in Jarvis and such information was
used for that purpose. There are absolutely no facts pleaded as to what
information was improperly obtained or when or in what manner or that any such
improper information was even used? In Jarvis, the Supreme Court of
Canada confirmed that there is no prohibition against the continuation of
parallel inquiry for civil and criminal purposes. On page 762, the Supreme
Court of Canada stated:
… Once
an auditor has inspected or required a document under ss. 231.1(1) and 231.2(1),
the taxpayer cannot be said to have a reasonable expectation that the auditor
will guard its confidentiality. As a consequence, there is no general rule that
prevents auditors from passing files containing validly obtained audit
materials to investigators. Nor is there any reason that the CCRA cannot
conduct parallel administrative audits and criminal investigations. However, if
the CCRA simultaneously conducts an administrative audit and criminal
investigation, investigators can avail themselves only of that information
obtained pursuant to the audit powers prior to commencement of the criminal
investigation. …
[20]
The Appellant must make
more than broad statements inviting conjecture on the part of the Court. His
pleadings must set out a concise statement of the material facts he relies on
in sufficient detail to enable the Court and the Respondent to know each cause
of action to properly address. Here, the Appellant has done no such thing. In Simon
v Canada, 2011 FCA 6, 2011 DTC 5016, Dawson J.A. said at paragraph 18:
18. The
requirement that a pleading contain a concise statement of the material facts
relied upon is a technical requirement with a precise meaning at law. Each constituent
element of each cause of action must be pleaded with sufficient particularity.
A narrative of what happened and when it happened is unlikely to meet the
requirements of the Rules. …
[21]
This sentiment was also
expressed by the Federal Court of Appeal in Merchant Law Group v Canada (Revenue
Agency), 2010 FCA 184, [2010] GST 105 (FCA), where Stratas J.A.,
relying on that Court’s earlier decision in Vojic v Canada (MNR), 87 DTC
5384 (FCA), confirmed that where a pleading “contains a set of conclusions, but
does not provide any material facts for the conclusions”, then “The bare
assertion of a conclusion upon which the court is called upon to pronounce is
not an allegation of a material fact”.
[22]
In Nelson v Canada (Minister of Customs and Revenue Agency), 2001 DTC 5644, Rouleau J.
also stated at paragraph 15:
15. …
Generally material facts in the statement of claim must be taken as true and in
determining whether a reasonable cause of action is disclosed, cannot be based
on assumptions and speculations and they cannot be taken as true simply because
they are bold statements unless there is substantive facts to support the
allegations. …
[23]
There is no evidence in
the pleadings that would allow the Court to come to the conclusion the Appellant’s
Charter rights were violated. Unlike in O’Neill Motors above,
here there is no admission of the Respondent that evidence was illegally
obtained nor do we have a finding from the Ontario Superior Court of Justice as
to same notwithstanding that the Appellant had multiple opportunities to plead
such issue before both trial and appellate courts. In short, there is no
evidence, finding or pleading that would permit this Court to find that the
pleadings are sufficient to establish any cause of action. All we have is conjecture,
speculation and innuendo. These are not enough to meet the threshold that the Appellant
has any chance whatsoever to succeed in his claim.
[24]
When fundamental rights
such as those protected under the Charter are in issue, I would probably
be more inclined to grant an order allowing an Appellant to amend his Notice of
Appeal, but here the Appellant’s motion to amend his Notice of Appeal is only
for the purposes of adding the requested relief of quashing the reassessment
and not to plead any material facts that would enable the Court to deal with
the issue more appropriately. Accordingly, on the basis of the pleadings alone,
I would dismiss the Notice of Appeal, however, the matter must be also be viewed
in the entire context and after consideration of the other grounds relied upon
by the Respondent, since in the end, all the Appellant’s arguments lead to the
alleged Charter violation.
Issue Estoppel, Collateral Attack and Abuse of Process
[25]
The Respondent argues
the Appellant is estopped from challenging the reassessment on the basis the
quantum of taxes found to be owing by the Ontario Superior Court of Justice,
who had jurisdiction to hear the Appellant’s tax evasion trials, have
effectively finally decided the issue. The three preconditions to invoke issue
estoppel are found in the decision of Toronto (City) v C.U.P.E.,
Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 at paragraph 23:
23. Issue
estoppel is a branch of res judicata (the other branch being cause of
action estoppel), which precludes the relitigation of issues previously
decided in court in another proceeding. For issue estoppel to be successfully
invoked, three preconditions must be met: (1) the issue must be the same as the
one decided in the prior decision; (2) the prior judicial decision must have
been final; and (3) the parties to both proceedings must be the same, …
[26]
There is no question in
my mind that as to the issue of the finding of unreported income and the
quantum of the reassessment there can be no argument that the conditions have
all been met, including finality when the Supreme Court of Canada denied the Appellant
leave to appeal the third trial results which were upheld by the Ontario Court
of Appeal.
[27]
There is ample
precedent that issue estoppel can apply in civil proceedings where the estoppel
was based upon a conviction in a criminal case. This principle has been
followed by the Federal Court of Appeal in Van Rooy v The Minister of
National Revenue, 88 DTC 6323 (FCA) and this Court in decisions of Holub
v Canada, [1996] TCJ No. 1784 (QL) and Mortensen v Canada, 2010 TCC
177, 2010 DTC 1133, both cases where the Appellants therein were
convicted of tax evasion on which the assessments of income were based.
[28]
The Appellant argues,
however, that the Charter issue was never decided by the Ontario Court
or the appellate Courts and thus such issue remains a “live issue” that this
Court can deal with and that even if the three preconditions are met for issue
estoppel this Court had discretion to not dismiss the appeal. In Stanley J. Tessmer Law Corp. v Canada, 2008 TCC 469, [2008] TCJ No. 392
(QL), Campbell J. of the Tax Court of Canada stated at paragraph 21:
21. Considering
all of these arguments, I am satisfied that there are sufficient circumstances
here that justify the exercise of my discretion to conclude that the elements
of issue estoppel are not satisfied. Even if the preconditions were met,
I believe I must look at the overall circumstances of the particular case
before me in deciding if issue estoppel should apply. It should never be
applied indiscriminately. It is not obvious that portions of the Notices of
Appeal concerning the constitutional grounds are so frivolous, vexatious and an
abuse of process that they should be struck.
[29]
The principles the
Appellant seeks to rely upon in Tessmer above; namely that the court has
discretion in the application of issue estoppel and may consider issues not
fully determined by other courts, was also confirmed by this Court in MacIver
v The Queen, 2005 TCC 250, 59 DTC 654, where, notwithstanding that Appellant’s
conviction for tax evasion, only the issue of unreported income had been
determined and not any allowable expenses thus the latter was a live issue for
the Court to consider. In Roberston v The Queen, 2007 TCC 472, [2007] TCJ
No. 576 (QL), this Court also dismissed a motion to strike on the grounds the Appellant
may have had a constitutional argument for the court to consider. Although Robertson
was not a case based on the doctrine of estoppel, the Appellant suggests we
follow it on the basis it demonstrates the Court’s reluctance to strike when
constitutional or fundamental issues may still be in play.
[30]
Unlike in MacIver
where this Court found there was uncertainty as to whether the assessment had
been fully determined by the criminal court, here there is no pleading to
challenge the quantum of the reassessment. The only argument the Appellant
makes is that his Charter rights may have been violated in a criminal
proceeding that was not the basis of the criminal conviction for tax evasion
relied upon by the Respondent to argue issue estoppel; the third trial by jury
in 2010 being such basis as earlier discussed and that the issue of whether
improperly obtained evidence was used in that first trial, or anywhere
subsequent to that as is implied, was never adjudicated.
[31]
Although I find the Appellant’s
argument remote and unlikely to succeed if he were allowed to argue this
specific issue before a judge of this Court having regard to the insufficiency
of his pleadings, I must concede that, however weak I might consider his
chances in the circumstances, to dismiss his appeal solely on the basis of
issue estoppel would not be appropriate. The Appellant is correct that the Charter
issue was not an issue determined by a court having competent jurisdiction and
thus one of the preconditions to the application of the doctrine of issue
estoppel may not have been met; due to the Appellant’s own failure to have
raised it.
[32]
Notwithstanding the
above, the courts have recognized that while similar considerations may apply
to the doctrines of issue estoppel, abuse and collateral attack, the courts
have also distinguished the rationale for the doctrines. In Toronto (City), the Supreme Court of Canada stated at paragraph 37:
37. In
the context that interests us here, the doctrine of abuse of process engages
“the inherent power of the court to prevent the misuse of its procedure, in a
way that would … bring the administration of justice into disrepute. …
[33]
In the same paragraph,
the Court went on to quote Goudge J.A of the Ontario Court of Appeal in
supporting that Court’s decision in Canam Enterprises Inc. v Coles, 2002
SCC 63, [2002] 3 S.C.R. 307, who expanded on the doctrine’s concept:
The
doctrine of abuse of process engages the inherent power of the court to prevent
the misuse of its procedure, in a way that would be manifestly unfair to a
party to the litigation before it or would in some other way bring the
administration of justice into disrepute. It is a flexible doctrine
unencumbered by the specific requirements of concepts such as issue estoppel.
…
[34]
In essence, I find that
the Appellant’s obvious failure to have raised the issue of violation of Charter
rights in the several previous processes before the Ontario Superior Court of
Justice, the Ontario Court of Appeal and in leave to appeal to the Supreme
Court of Canada over the period from 2002 to 2012 and then to raise the matter
here to be an extreme abuse of this Court’s processes and one that would, if
permitted, be akin to this Court usurping the jurisdiction of those Courts and
in fact placing itself in the role of appellate court to them, which would be
ridiculous.
[35]
The Appellant is effectively
asking this Court to decide the issue as to whether evidence obtained in a
civil matter audit was used in evidence, improperly, to obtain a criminal
conviction when he could have and should have asked those other courts who had
the jurisdiction to do so. That matter is solely within the jurisdiction of the
Ontario Courts to decide. The argument of the Appellant is that if they did not
do so, even if the Appellant did not raise the issue in the several proceedings
before the Ontario Superior Court of Justice, the Ontario Court of Appeal or in
leave to the Supreme Court of Canada, that somehow this Court has jurisdiction
to entertain the argument. I do not agree. It is one thing for this Court to
accept that the decision of those competent Courts on the admissibility of such
evidence should apply to proceedings under this Court as the Courts did in Holub
and MacIver above, it is quite another to suggest that this Court, in
the exercise of its discretionary jurisdiction under subsection 24(2) of the Charter
should accept the role of hearing matters outside its jurisdiction just because
they were not heard in the court having jurisdiction to hear them in the first
place.
[36]
Consequently I cannot agree
the Charter transfers the power to hear tax evasion matters to this
Court in the exercise of its discretionary powers alluded to in subsection 24(2)
of the Charter. I accept, however, that when a Charter violation
has been determined by a Court having competent jurisdiction that we have the
jurisdiction to grant a discretionary remedy such as dismissing an assessment
where the effect of that decided violation would leave no evidence on which
this Court could dismiss the appeal or otherwise vary it or send it back for reconsideration
and reassessment under section 171 of the Act. In the case at hand,
there had been no determination by a court having competent jurisdiction in tax
evasion matters that such violation occurred nor any facts or evidence pleaded,
which if assumed to be true would support such allegation. Moreover, I would
not be prepared to exercise any discretion to grant the Appellant’s requested
remedies under any discretionary power this Court may have in the circumstances
here as it would bring the administration of justice into disrepute.
[37]
It is significant that
the Appellant acknowledges that the issue he asks this Court to determine was
not raised in any of the three trials, two appeals or one leave to appeal above
referenced and he has no knowledge why. If the Appellant himself did not see
fit to raise the Charter issue before the competent Court in the first place,
especially when the basis for his defence in his tax evasion trials was that he
had no intent to commit tax evasion but only intended to protest what he
considered unlawful government action or the constitutional validity of the
Federal Government’s power to impose and collect taxes, then I certainly
do not see how it can now be raised in the first instance here. Moreover, the
fact Jarvis had not even been decided at the time of the first trial
suggests there was no enforceable law prohibiting the Respondent from using any
such audit information if in fact he did so; of which there is no material fact
pleaded to allow this Court to conclude it was so in any event. Jarvis
was in play after the first trial, before the first appeal was heard and before
the second and third trial proceedings started so I fail to understand how the
Appellant has in any way been deprived of his Charter rights in the
first place. The fact his defence of criminal charges was based on
constitutional arguments suggests he was keenly aware of constitutional and Charter
issues.
[38]
Frankly, coming to this
Court after going all the way to the Supreme Court of Canada is nothing short of blatant abuse of process and a frivolous act that attempts to
place this Court in a position of appellate Court to those higher appellate
courts. I am not prepared to assume such a ridiculous and disrespectful role.
The Appellant is doing nothing more than attempting to relitigate the same
issue he had or should have had before the Ontario Courts before the Tax Court of
Canada which also offends the doctrine of collateral attack as argued by the Respondent
and constitutes a blatant abuse of process that is not to be condoned.
[39]
Accordingly, on the
basis that the Notice of Appeal pleads no facts sufficient to establish a cause
of action and is a blatant abuse of process, the motion of the Respondent to
dismiss the appeal is allowed and the motion of the Appellant to amend his
Notice of Appeal to seek vacating or quashing of the reassessment is denied.
The Respondent shall be entitled to costs on these motions.
Signed at Ottawa, Canada, this 21st day of June
2013.
“F.J. Pizzitelli”
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