Harris v. R., 98 DTC 6072, [1998] 2 C.T.C. 325, [1998] 2 C.T.C. 88 (FCTD)

Giles A.S.P.:

1 In the motion before me the defendant sought an order striking out the Statement of Claim pursuant to Rule 419 of the Federal Court Rules. The grounds in the notice of motion were: (i) the Statement of Claim discloses no reasonable cause of action; (ii) the plaintiff lacks the requisite standing to bring this action; (iii) the Statement of Claim is prejudicial and embarrassing and is an abuse of the process of the Court; (iv) by virtue of subsections 18(3), 18.1(1) and 1602(1) of the Federal Court Act declaratory relief against the Minister of National Revenue may be sought only on an application for judicial review made by way of originating motion; (v) the plaintiff is not a person directly affected by the matter within the meaning of subsection 18.1(1) of the Federal Court Act and also lacks standing to bring an application for judicial review; (vi) the plaintiff is not a person directly affected by the matter within the meaning of subsection 18.1(1) of the Federal Court Act and also lacks standing to bring an application for judicial review.

2 At the hearing before me it was indicated that the Crown was not intending to press the fourth ground namely that the declaratory relief sought was only available on an application for judicial review made by way of an originating motion and that the parties were agreed that the originating motion should have been converted in any event into an action. I pointed out at the time that it is not open to the parties to make such an agreement. Only the Court can, by application of section 18.4(2) of Federal Court Act, direct that an application for judicial review be treated and proceeded with as an action. In my view this alone would have a sufficient ground for striking out the Statement of Claim herein. Counsel suggested that I should apply Rule 2 (2) which provides that the Rules are intended to render effective the substantive law and to ensure that it is carried out; and they are to be so interpreted and applied as to facilitate rather than to delay or to end prematurely the normal advancement of cases. The requirement that declaratory relief be sought only under section 18.1 is a requirement of a statute not of the Rules. So Rule 2(2) is not applicable. In case my interpretation be found incorrect, I proceeded to hear argument with respect to the other grounds for the motion.

3 The plaintiff Harris in this action represents himself and a class consisting of all individuals and others required to file returns pursuant to section 150 of the Income Tax Act excepting for certain persons who between January 1, 1985 and October 1, 1996, carried out transactions or were assessed by the Minister of National Revenue on the basis that, as a matter of law, “taxable Canadian property” under the Act can be held or disposed of by residents of Canada. The plaintiff Harris pleads that he has been a member of an unincorporated organization known as CHO!CES- A Coalition for Social Justice of which organization for a year he was co-Chairperson. The organization deals with a wide variety of public issues. The fair distribution of taxation burden, including the proper enforcement of existing taxation statutes, has been a fundamental concern of the organization and of the plaintiff personally.

4 It is pleaded that on May 7, 1996, the Auditor General of Canada filed a report to the House of Commons in which he expressed grave concerns about the administration on the Income Tax Act in respect of the movement out of Canada of at least $2 billion dollars of assets held in certain unidentified family trusts. Because of Advance Tax Rulings [hereinafter “Rulings”] given by the Minister or the Minister's officials in 1985 and again on December 24, 1991, the Auditor General stated that the transactions ruled on may have circumvented the law regarding the taxation of capital gains.

5 The Auditor General expressed the opinion that, contrary to the interpretation adopted and applied by the Minister, “taxable Canadian property” under the Act cannot be held by residents of Canada but only by non-residents. As a result, certain shares of public companies acquired in exchange for private company shares should not have been considered “taxable Canadian property” when the ownership thereof moved from Canada to the United States. The effect of the Auditor's opinion is that the transactions in question should not have taken place under the Act without payment of applicable tax on accrued capital gains.

6 The Auditor further reported that the Minister may have allowed the erosion of tax base by forfeiting a legitimate future claim by the Crown to many million dollars of tax revenue. The Auditor also criticized the lack of documentation and analysis of key decisions and observed that because the Rulings were not made public for several years, benefits may have been preferentially enjoyed by certain taxpayers.

7 On September 12, 1996, a letter from legal counsel for CHO!CES was delivered to the Attorney General for Canada requesting that the Attorney General refer the matter to a Court of competent jurisdiction for a determinative decision concerning the correctness and propriety of the Minister's rulings. Failing commencement of proceedings by the Attorney General, CHO!CES requested that the Attorney General issue his fiat to allow a relator action to be started by CHO!CES. In September, 1996, the Standing Committee on Finance adopted the report on the treatment of taxable Canadian property under the Act. The government members accepted the Minister's view that “taxable Canadian property” could be held by residents of Canada and that the Rulings were therefore correct. The Attorney General never replied to the letter from CHO!CES' solicitors but did state in response to questions from the opposition that he accepted the majority report of the standing committee which endorsed the Minister's handling of the Rulings and rejected the Auditor's critique thereof.

8 The facts alleged by the plaintiff are that in 1984, the Minister was asked by a party whose identity is not known to the plaintiff, for a ruling declaring that public company shares held by a trust resident in Canada would be considered “taxable Canadian property” under the Act and that a change in residence of the trust would not cause a deemed realization. In January 1985 the Minister granted the request and issued a Ruling. It is alleged that one week after the issuing of that Ruling, the Minister was asked by another party whose identity is not known, for a non-binding opinion where the circumstances were comparable. In May 1985 an opinion was issued which was contrary to the Ruling. The Ruling which allowed the emmigration of shares ownership without realization of capital gains was not published by the Minister. The 1985 opinion denying that favourable treatment was made public by the Minister.

9 In 1991, a party related to the party involved in the 1985 Ruling requested a Ruling in circumstances somewhat similar to the 1985 Ruling. The circumstances were as follows. On March 8th, the request for Ruling was initially received indicating the purposes of the proposed transaction were to avoid the deemed disposition under the 21 year old rule. This request was withdrawn and replaced by a second request on November 7. On November 25 the taxpayer's representative provided Revenue Canada with a copy of the 1985 Ruling. This Ruling was not in the public domain. On December 3rd, Revenue Canada advised the Department of Finance of the proposed transactions and that it intended to refuse to grant a favourable Ruling and if necessary to bring the matter before the general anti-avoidance rule committee.

10 On December 6, Revenue Canada and Department of Finance officials met to discuss the issues raised in the spirit of the December letter.

11 On December 12, Revenue Canada's Rulings Review Committee decided that a favourable Ruling should not be provided.

12 On December 12, Revenue Canada advises the Department of Finance that it will not rule in favour of the trusts and requests Finance to leave the interpretation of the Act in Revenue's hands.

13 On December 16th, the taxpayer's representatives are advised that a favourable Ruling will not be provided. The taxpayer offers to provide a waiver and a statement that they will not dispose of the shares for five years.

14 On December 18th, Revenue Canada informs the taxpayer's representative that it cannot accept their offer of the 16th of December.

15 Representatives of the taxpayer then offer not to use the provisions of the tax treaty between the United States and Canada which would allow the taxpayer to escape Canadian tax completely.

16 On December 18th, a memorandum is prepared for the Assistant Deputy Minister of Revenue advising the Deputy Minister that the Department is not able to rule favourably.

17 On December 19th, a draft legal opinion is received by the Minister's Rulings Directorate from Department of Justice counsel which stated in part as follows:

the Act in my view is ambiguous with respect to the subject issue. However, given the general scheme of the Act, I share your view that an argument is available that only a non-resident can dispose of “taxable Canadian property” for purposes of the deeming provisions of paragraph 85(1)(i) of the Act.

18 On December 20, Senior officials of Revenue Canada decide a memorandum prepared by the Deputy Minister should be revised.

19 On December 23, a revised memorandum is prepared to the Deputy Minister advising that the taxpayer's proposal is not acceptable because it is the Department's view that when the public company shares are transferred out of Canada, tax would be triggered. The letter suggests possible alternatives to the taxpayer's proposal.

20 On December 23, senior Revenue officials meet twice. There are no minutes of the meetings in the file, contrary to established Revenue Canada policy and practice that such important meetings must be fully documented.

21 On December 23rd, senior Revenue officials meet with Department of Finance officials. Again there are no minutes of the meeting on either Revenue Department file or the Finance Department file contrary to established policy and practice in both Crown Departments.

22 On December 23rd, senior Revenue officials meet and again there are no minutes of this meeting. On December 23rd, the Revenue Department Rulings officers advise the decision has been made to accept an undertaking and a waiver and to rule favourably.

23 On December 23rd, Revenue Canada receives a letter from the Department of Finance discussing the policy intent of certain provisions in the law crucial to the case at hand. These provisions deal with “taxable Canadian property”. The letter concludes that in policy terms residents may own “taxable Canadian property”. The letter is used to provide Revenue Canada with some comfort to support its decision to rule favourably.

24 On December 23rd, the taxpayer's representatives are advised that the Minister will accept an undertaking and waiver and will rule favourably.

25 On December 24th, a Ruling was issued and the required undertaking and waiver were received.

26 On January 13th, legal counsel from the Department of Justice provided a revised version of its December 19th written legal opinion to the Minister's Rulings Directorate. The opinion concluded:

Under the circumstances, the better view, in my opinion, is that a resident can dispose of “taxable Canadian property” for the purposes of the deeming provisions of paragraph 85(1)(i) of the Act.

27 The 1991 Ruling was not published by the Minister until March 1996 when it was released in severed form without reference to the waiver and undertaking. The true nature of the transaction was not in the public domain until the tabling of the Auditor's report on May 7, 1996. It is alleged that, by virtue of the foregoing conduct, the Crown bestowed an undue preference and special benefit on the trusts involved whereas other trusts and the class of plaintiffs herein generally were unaware of the favourable interpretation being applied by the Minister in such circumstances.

28 The plaintiff alleges he has a reasonable apprehension of bad faith administration and an ulterior motive on the part of the Crown in the circumstances of this case and the plaintiff reserves the right to amend his claim with further particulars in this regard. After filing affidavits as to the documents and conduct of examinations of discovery, it is further alleged that in July 1994 a taxpayer, whose identity is not known by the plaintiff, requested information from Revenue Canada concerning whether a resident of Canada could hold taxable Canadian property. No response was given.

• (a) a determination that, pursuant to the common law doctrine of public interest standing, in the circumstances of this case, the plaintiff is entitled to sue for substantive declaratory relief with respect to the meaning and interpretation of the Act as set forth in the claim;

• (b) in the alternative, if the common law, as applied in the context of the Act and the circumstances of this case, does not allow for a grant of public interest standing in favour of the plaintiff, the plaintiff seeks a declaration that the common law rule is unconstitutional or constitutionally inapplicable in this case and that the plaintiff is entitled to sue for substantive relief as claimed herein, in that:

  • (i) as an aspect of the constitutional principle of Rule of Law, guaranteed specifically by Article XII of the English Bill of Rights, 1688 (sic), as well as The Constitution Act, 1867, and The Constitution Act, 1982, the Executive Branch of the Government of Canada is not authorized to dispense with the due enforcement of laws enacted by Parliament as the Crown has purported to do in this case; and

  • (ii) where the Crown refused to ensure the due enforcement of laws enacted by Parliament, the plaintiff has standing as a matter of constitutional right to prevent the executive from dispensing with the law enacted by Parliament;

• (c) a declaration that prior to October 1, 1996 on a proper construction of the Income Tax Act, as a matter of law, “taxable Canadian property” could not be held by a resident of Canada; and

• (d) a declaration that the Crown is obliged to apply the law as declared by this Honourable Court to the circumstances of the case of Protective Trust and Family Trust as well as any other such cases known to the Crown;

• (e) a declaration that the Minister is obliged to utilize her powers under the Act, including the authority to assess, reassess pursuant to section 150(2) of the Act, so that any income tax properly due and owing under the Act is duly paid to the Crown.

  After the first prayer for relief, the plaintiff inserts in the Statement of Claim a further six paragraphs of facts; and then

• (f) claims a declaration that in receiving and responding to the 1991 Ruling request, the Minister was acting in a fiduciary capacity, or was acting in a capacity akin to a fiduciary, toward the class of plaintiffs described herein; and

• (g) a declaration that the Minister breached the said fiduciary duty or fiduciary-like duty in the following respects:

  • (i) by agreeing to issue an Advance Tax Ruling in circumstances where the share exchange had already taken place, and therefore the transaction which was to be the subject of the Ruling was substantially completed, all of which was contrary to established Revenue Canada policy and procedure, which allows for Rulings respecting proposed transactions only; and

  • (ii) by agreeing to issue a Ruling when Revenue Canada believed that the Act did not allow for such a favourable Ruling, or was ambiguous in respect of the proposed transaction; and

  • (iii) by agreeing to issue a Ruling when the applicant therefor was apparently in possession of private information, to wit the 1985 Ruling whereas the only public position ever put out by the Minister was contrary, namely, the 1985 opinion; and

  • (iv) by favouring Protective Trust and Family Trust with a Ruling not equally available to others;

  • (v) by succumbing to pressure by persons outside Revenue Canada and reversing the Department's considered position against a favourable Ruling;

  • (vi) by issuing a Ruling with a private side deal, comprised of the undertaking and waiver thereby allowing a transaction which avoided the intent of the Act; and

  • (vii) by neglecting or refusing to refer the matter to the Anti-Avoidance Committee under the General Anti-Avoidance Rules pursuant to section 245 of the Act, for detailed consideration and analysis in that forum, prior to rendering a decision in response to the Ruling request; and

  • (viii) By processing and approving the Ruling with extraordinary and undue haste, in order to satisfy the schedule of the applicant for the Ruling, and thereby precluding completion of a thorough internal review of all relevant aspects of the matter; and

  • (ix) By issuing an erroneous Ruling in law; and

  • (x) By failing to publish the Ruling forthwith, and by failing to provide all material details of the Ruling when finally publishing same in or about March 1996; and

  • (xi) By failing to take all reasonable steps to protect the tax base and the practical interests of the class of Plaintiffs; and

  • (xii) Such further and other particulars of breach as may become known to the Plaintiff after Discovery.

• (c) A declaration that the Minister is obliged to utilize all available measures under the Act to collect any tax properly due and owing as a result of the transaction referenced in the 1991 Ruling, including resort to the waiver given by Family Trust pursuant to section 152(4)(a)(ii) of the Act with respect to the application of section 107(5) of the Act in the taxation year of Family Trust in which the distribution was made.

30 Counsel for the plaintiff sought to make a preliminary objection to the hearing of a motion to strike on the ground of lack of standing. I decided to hear the motion to strike which would involve among other things, a challenge to the plaintiff's standing and would then determine whether the plaintiff should have standing if I determined a right of action existed for a person who did have standing. The plaintiff's challenge constitutes a third-party challenge to an Advance Tax Ruling and apparently the assessment made relying thereon. (I said apparently because there is a lack of facts as the plaintiff relies on the report of the Auditor General which deliberately omitted facts which were not necessary for his technical point and which might have revealed the names of the taxpayers. The plaintiff himself in his Statement of Claim has indicated on several occasions that he does not have facts and hopes to be able to supply them after discovery.)

31 A third-party challenge to an assessment has never been permitted in our tax system. See the reasons of Mr Justice Strayer in Nova Ban-Corp Ltd. v. Tottrup (1989), [1990] 1 F.C. 288 (Fed. T.D.), at 294 and 295 particularly where he says:

It should be underlined that the plaintiffs' action must fail, not because of some arcane jurisdictional conflict between the Court of Queen's Bench of Alberta and the Federal Court of Canada, but because the action is intrinsically defective. That is, there is no court which will entertain a challenge to federal income tax assessment other than one brought by the taxpayer.

32 The plaintiff has raised the matter of the constitutionality of the Ruling in the light of the Bill of Rights. The Bill of Rights, 1688 (1 Will. & Mary, sess 2, c. 2) s.1 Article 9 prohibits impeaching or questioning proceedings in Parliament. In Dingle v. Associated Newspapers Ltd. (1959), [1960] 2 Q.B. 405 (Eng. Q.B.), Mr. Justice Pearson at p. 410 says in part:

...it is quite clear that to impugn the validity of the report of a select committee of the House of Commons, especially one which has been accepted as such by the House of Commons by being printed in the House of Commons Journal, would be contrary to section 1 of the Bill of Rights. No such attempts can properly be made outside Parliament.

33 In the case as pleaded before me, it is pleaded a committee reported to the House of Commons and the House of Commons accepted that report. If, therefore, that section of the Bill of Rights is still part of the Law of Canada constitutionality would appear to be on the side of the defendant. It is quite apparent here that what the plaintiff seeks to do is reverse not only the Minister's opinion and Ruling, but also the Report of the Finance Committee which was tabled in the House of Commons of Canada. The constitutionality matter was not raised by counsel for the Crown when before me and I did not raise it. In fact, I only recalled it when considering the availability of the constitutional pleading of the plaintiff as a possible foundation for a cause of action. Because the plaintiff did not have an opportunity to comment, I prefer not to rest my decision to strike on this constitutional point.

34 With regard to the matter of standing for the plaintiff, it is my view that if the individual plaintiff does not have standing in his own right, he cannot represent the class which he purports to represent and that if the plaintiff's claim is struck for want of standing, then the claim of the class must also fail.

35 With regard to subparagraph 36(a) of the claim, where the plaintiff seeks a determination that pursuant to the common law doctrine of public interest standing, the plaintiff is entitled to sue for substantive declaratory relief with respect to the meaning and interpretation of the Act. The interest of the plaintiff in the meaning of the relevant sections of the Act is no greater than that of all others who are curious as to the interpretation of the Act. The plaintiff's wish to see the subject trusts and similar trusts taxed is not an “interest” as that word is used. The plaintiff does not, therefor, have the special interest required by the common law to give him standing. There is not a constitutional issue (in the sense of the Charter of Rights) and there is no question as to the limits of the Minister's right to interpret and assess. Therefore, the plaintiff would not be entitled to standing.

36 With regard to subparagraph 36(b), the plaintiff is not raising a constitutional issue in the sense of the Charter of Rights but rather in the sense of the Bill of Rights and as I observed earlier, the Bill of Rights would not give the plaintiff standing to seek from the Court interference with the finding of a committee of the House of Commons. There is, therefore, no way in which the common law with respect to standing can be unconstitutional in the Bill of Rights sense of the word.

37 With regard to paragraph 36(c), which seeks a declaration that prior to October 1, 1996, “taxable Canadian property” could not be held by a resident of Canada. This would be a declaration concerning a matter in which as I have previously stated, the plaintiff is not “interested”.

38 With regard to paragraph 36(d), seeking a declaration that the Crown is obliged to apply the law, as declared by this Honourable Court, to the circumstances of the case of Protective Trust and Family Trust as well as any other such cases known to the Crown, the plaintiff is seeking to determine the tax liability of persons other than himself and as previously noted, the courts have never permitted such an action.

39 With regard to paragraph 36(e), which seeks a declaration that the Minister is obliged to utilize her powers under the Act so that any income tax properly due and owing under the Act is duly paid to the Crown, is not the kind of relief that will be granted where there is no finding that such action has not been taken by the Minister.

40 In addition, I would point out the difference between the public and the Crown. In this country, the interests of the individual subject, the interests of the state (the “Crown”) and the interests of the public are three distinct interests. The interests of the Crown are not the same as the interests of the totality of its subjects commonly called the public. Thus, in a matter of taxation where taxes levied are payable to the Crown, and are collected by servants of the Crown from individual subjects and others, the public does not enter the equation at the collection level. The interests of the public in taxation are expressed at the legislative level at which the public, through the legislature, authorizes the Crown to collect certain taxes from the subjects. Thus, there is no right in the public or any section or subdivision of it, down to one individual or interest group to bring action to collect taxes from another individual.

41 With regard to the pleas dependant upon the existence of a fiduciary relationship, as previously noted, the Crown does not collect taxes for an individual or the public but rather for the purposes of the Crown and while there may be an obligation under the Bill of Rights not to excuse a subject from paying taxes authorized by Parliament, it remains within the jurisdiction of the Crown to decide in what manner taxes will be collected and in doing so, to streamline collection procedures by such devices as Advance Tax Rulings.

42 The right to bring an action against the Crown is a statutory one. An authority must be found somewhere. The authority for an action is to be found in the Proceedings Againstthe Crown Act. In that Act, there are a certain number of actions in contract and an action dependant on the vicarious liability of the Crown for the various torts of its servants.

43 To control what Lord Hewart described as the “new despotism” - that is, the rule by civil servants - judicial review proceedings were devised. Remedies such as declaration and mandamus can, by the Federal Court Act, only be brought by judicial review proceedings. There is a provision in that Act for the Court to convert a judicial review proceeding into an action in proper circumstances. As pointed out before, counsel had apparently agreed not to challenge these proceedings being carried on by an action. Nevertheless, where proceedings are permitted to be converted into an action, they must originally have been properly brought as review proceedings. To bring review proceedings, one must be a person directly affected by the matter in respect of which relief is sought. Whether the relief is sought with regard to the Ruling or with regard to the presumed assessment thereafter, the plaintiff cannot be said to be directly affected. An advance Ruling, by definition, does not affect anyone other than the taxpayer at whose request it is issued (where it is not made public, no other taxpayer can rely to his detriment on it). An assessment affects only the person whose income or deemed income is assessed for tax. Because the plaintiff is not directly affected, the plaintiff has no standing in a judicial review and gains none even if it is converted into an action.

44 For the foregoing reasons the Statement of Claim will be struck.

Order

The Statement of Claim is struck out as disclosing no cause of action within the jurisdiction of the Court and because the plaintiff Harris is not entitled to standing.