Docket: 2009-3853(IT)G
BETWEEN:
STEVE FRENCH,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
(The Respondent’s motion dealt with by
written representations.)
Before: The Honourable
Justice G. A. Sheridan
|
Counsel
for the Appellant:
|
D.
Laurence Armstrong
|
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Counsel for the Respondent:
|
Raj Grewal
|
____________________________________________________________________
ORDER
Upon a Motion by the Respondent for an Order
pursuant to section 53 of the Tax Court of Canada Rules (General
Procedure) to strike out paragraphs 7, 9 and 11 of the Notice of Appeal and
costs of this motion in any event of the cause;
And the Appellant having consented to the
Respondent’s request that the Motion be disposed of upon consideration of
written representations and without personal appearance by the parties pursuant
to section 69 of the Tax Court of Canada Rules (General Procedure);
And having read the submissions of the parties;
In accordance with the attached Reasons for
Order, the Respondent’s motion is allowed to the extent that paragraph 11 of
the Notice of Appeal is struck out; costs to be determined by the trial judge.
Signed at Winnipeg, Manitoba,
this 11th May, 2010.
“G. A. Sheridan”
Citation: 2010TCC258
Date: 20100511
Docket: 2009-3853(IT)G
BETWEEN:
STEVE FRENCH,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Sheridan, J.
[1] The grounds for
the Respondent’s motion are:
a)
paragraphs 7, 9 and 11 of the Notice of Appeal contain allegations of
fact that
a.
may prejudice or delay the fair hearing of the action;
b.
are scandalous, frivolous or vexatious; and
c.
are an abuse of the process of the Court.
b)
paragraphs 7, 9 and 11 of the Notice of Appeal contain allegations of
fact concerning the Canada Revenue Agency’s process of assessing penalties
against the Appellant under subsection 163(2) of the Income Tax Act,
R.S.C. 1985, c. 1 (5th Supp.), as amended (the “ITA”) and the
conduct and actions of a CRA official.
c)
The process of an assessment and the conduct of CRA officials during
that process are not relevant to any issues that are within the jurisdiction of
the Tax Court of Canada, namely, the determination of the Appellant’s liability
for penalties in accordance with the provisions of the ITA.
[2] The threshold
for the striking out of pleadings is high. The jurisprudence is clear that, assuming
the facts alleged can be proved, a pleading ought not to be struck out unless
it is “plain and obvious” that it contains a radical defect that is certain to
fail: Hunt v. Carey Canada Inc..
[3] In the present
case, I am not persuaded by the submissions of the Respondent that it is “plain
and obvious” that the allegations made in paragraphs 7 and 9 pertain only to
the misconduct of the Minister’s officials. I agree with the Appellant that
they may be relevant to the determination of the validity of the penalties
imposed by the Minister; in particular, to the timing of the assessment of the
penalties as it relates to subsection 239(3) of the Income Tax Act.
[4] Paragraph 11, on
the other hand, has only to do with the alleged misconduct of the officials;
even if true, the allegations made do not provide a basis for allowing the
appeal. Accordingly, paragraph 11 of the Notice of Appeal
shall be struck.
[5] The parties’
requests for costs are best left to the trial judge.
Signed at Winnipeg, Manitoba, this 11th
day of May, 2010.
“G. A. Sheridan”
CITATION: 2010TCC258
COURT FILE NO.: 2009-3853(IT)G
STYLE OF CAUSE: STEVE FRENCH AND THE QUEEN
REASONS FOR ORDER BY: The Honourable Justice G. A. Sheridan
DATE OF ORDER: May 11, 2010
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Counsel for the Appellant:
|
D. Laurence Armstrong
|
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Counsel for the
Respondent:
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Raj Grewal
|
COUNSEL OF RECORD:
For the Appellant:
Name: D. Laurence Armstrong
Firm: Armstrong
Wellman
Victoria, British Columbia
For the
Respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa,
Canada
Main Rehabilitation Co. v. Canada, [2004] 2 C.T.C. 2068. (T.C.C.).
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