Docket: 2010-1146(EI)
BETWEEN:
WILLIAM SHAWN DAVITT,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
____________________________________________________________________
Motion heard together with the motion in William
Shawn Davitt (2010-1147(CPP)), and decision
rendered orally from the Bench
on October 7, 2010,
at Toronto, Ontario.
Before: The Honourable
Justice Patrick Boyle
Appearances:
|
For the Appellant:
|
The
Appellant himself
|
|
Counsel for the Respondent:
|
Annie Paré
|
____________________________________________________________________
JUDGMENT
UPON motion by the Respondent for an Order
of this Court to strike a Notice of Appeal filed by the Appellant under the Employment Insurance Act;
UPON reading the pleadings and other
materials filed;
AND UPON hearing submissions of both parties;
IT IS ORDERED THAT:
1.
The Respondent’s motion
is granted and the appeal filed under the Employment Insurance Act is quashed in accordance with the Reasons for Judgment attached
hereto.
2.
Costs in the aggregate amount
of $5,000 shall be payable by the Appellant in favour of the Respondent on or
before January 21, 2011.
3.
The Appellant,
William Shawn Davitt, may not institute an appeal in this Court in
respect of Employment Insurance (“EI”) matters without written leave of the
Court having first been obtained.
4.
William Shawn Davitt
may not appear as counsel in this Court in respect of any EI appeal in which
any issue is substantially similar to the issues raised in this case or in any
of Mr. Davitt’s previous EI appeals to this Court without written leave of
the Court having first been obtained.
5.
William Shawn Davitt
may not institute any appeal or represent any other person in this Court if the
proceeding raises any issue which is substantially similar to the issues raised
in this case or any of Mr. Davitt’s previous EI appeals to this Court
without written leave of the Court having first been obtained.
6.
Any such leave
application shall be in writing and shall not exceed 10 pages in length.
Signed at Ottawa, Canada, this 7th day of December 2010.
"Patrick Boyle"
Docket: 2010-1147(CPP)
BETWEEN:
WILLIAM SHAWN DAVITT,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
____________________________________________________________________
Motion heard together with the motion in William
Shawn Davitt (2010-1146(EI)), and decision
rendered orally from the Bench
on October 7, 2010,
at Toronto, Ontario.
Before: The Honourable Justice Patrick
Boyle
Appearances:
|
For the Appellant:
|
The Appellant himself
|
|
Counsel for the Respondent:
|
Annie Paré
|
____________________________________________________________________
JUDGMENT
UPON motion by the Respondent for an Order
of this Court to strike a Notice of Appeal filed by the Appellant under the Canada
Pension Plan;
UPON reading the pleadings and other
materials filed;
AND UPON hearing submissions of both parties;
IT IS ORDERED THAT:
1.
The Respondent’s motion
is granted and the appeal filed under the Canada Pension Plan is quashed
in accordance with the Reasons for Judgment attached hereto.
2.
Costs in the aggregate amount
of $5,000 shall be payable by the Appellant in favour of the Respondent on or
before January 21, 2011.
3.
The Appellant,
William Shawn Davitt, may not institute an appeal in this Court in
respect of Canada Pension Plan (“CPP”) matters without written leave of the
Court having first been obtained.
4.
William Shawn Davitt
may not appear as counsel in this Court in respect of any CPP appeal in which
any issue is substantially similar to the issues raised in this case or in any
of Mr. Davitt’s previous CPP appeals to this Court without written leave
of the Court having first been obtained.
5.
William Shawn Davitt
may not institute any appeal or represent any other person in this Court if the
proceeding raises any issue which is substantially similar to the issues raised
in this case or any of Mr. Davitt’s previous CPP appeals to this Court
without written leave of the Court having first been obtained.
6.
Any such leave
application shall be in writing and shall not exceed 10 pages in length.
Signed at Ottawa, Canada, this 7th day of December 2010.
"Patrick Boyle"
Citation: 2010 TCC 555
Date: 20101207
Dockets: 2010-1146(EI)
2010-1147(CPP)
BETWEEN:
WILLIAM SHAWN DAVITT,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
EDITED VERSION OF TRANSCRIPT
OF REASONS FOR JUDGMENT
[delivered
orally from the Bench at Toronto, Ontario, on October 7, 2010]
Boyle J.
[1]
These are my reasons on
the motion in the William Shawn Davitt Employment Insurance (“EI”) and Canada
Pension Plan (“CPP”) appeals heard in Toronto today. This is a motion by the
Crown to strike the Appellant’s EI and CPP Notices of Appeal for 2007.
[2]
The Appellant, William
Shawn Davitt, is a lawyer and a chartered accountant. He has a long and
consistent history of appearing in this Court on his own behalf. He is clearly
bright and is both passionate and knowledgeable about his adopted cause. He has
brought a series of essentially similar Charter‑based and
substantive law‑based appeals to this Court since 2001 when he was a
student‑at‑law. All have been entirely unsuccessful without the
need for a trial. The appeals were all quashed at the outset. Over time his
appeals morphed to include numerous allegations of fraud at federal and
provincial government levels, among other things, in support of his claim of
age‑based Charter discrimination. He also added over time claims
of judicial bias. There is little new in his current appeals beyond additional
evidence being pleaded at considerable length.
[3]
His most recent prior
proceeding involved his 2006 EI and CPP assessments. They were struck by
Justice Webb in 2008. Justice Webb’s decision was upheld by the Federal Court
of Appeal in 2009. The Supreme Court of Canada dismissed Mr. Davitt’s
leave application in April of this year without reasons.
[4]
At paragraphs 10
through 13 of Justice Webb’s 2008 reasons for order, he wrote:
[10] The
Appellant had previously filed appeals to this Court based on his argument that
the EI Act and the CPP discriminate contrary to section 15 of the
Charter. Associate Chief Justice Bowman (as he then was) allowed the
Motion of the crown and struck out the Appellant’s notice of appeal filed in
2001. . . Justice MacArthur [sic] struck out a Notice of
Appeal filed by the Appellant in relation to the issue of whether the
contribution rates under the CPP discriminated based on age contrary to
subsection 15(1) of the Charter. . . That Notice of
Appeal had also included an argument that the CPP was a Ponzi scheme.
[11] Justice
Little struck out Notices of Appeal filed by the Appellant in 2003 under the Income
Tax Act, the EI Act, and the CPP. . . In the
Notices of Appeal filed under the EI Act and the CPP the
Appellant was alleging that the premium rate under the EI Act and the
contribution rate under the CPP discriminate on the basis of age
contrary to section 15 of the Charter.
[12] In
2006 the Appellant brought a Motion to set aside the orders issued by Associate
Chief Justice Bowman (as he then was), Justice MacArthur [sic] and
Justice Little referred to above. Justice Mogan dismissed this
motion. . . In his decision Justice Mogan made the following
comments:
11 If
the Appellant is right in maintaining that the Canada Pension Plan rates are
too high, that the Plan is too well-funded, that the excess goes into the
general federal revenue; or if he is right that employment insurance rates are
too high and he ought not to have paid as much as he paid in the years 1998 or
1999 or 2000; whether such rates are too high or not is an issue that, again,
is beyond the jurisdiction of this Court. Those rates are set in public debates
in Parliament depending on the particular legislation. There are parliamentary
committee hearings where different interest groups, and different political
parties make their position known. I conclude the Tax Court of Canada has
no jurisdiction to interfere with that kind of legislation.
[13] The
Appellant has again filed Notices of Appeal under the EI Act and the CPP
alleging that the premium rate set under the EI Act and the contribution
rate set under the CPP should be reduced to nil. The first issue that
must be decided is whether this Court has the jurisdiction to review the
premium rate as set under the EI Act and the contribution rate as set
under the CPP.
[5]
It should be noted that
the only change to the remedies sought by Mr. Davitt in today’s 2007
appeals from the remedies sought by him in his 2006 appeals as reproduced in
Justice Webb’s reasons was to change the year from 2006 to 2007 and the amount
of the statutory deduction to the 2007 amount. His $11 million punitive damage
claim for Charter infringement remained unchanged in amount this time.
[6]
The Federal Court of
Appeal and this Court has previously told Mr. Davitt he was in the wrong
court in the clearest of language. Yet he returns. Every taxpayer is entitled
to their day in court, but Mr. Davitt has had his day in each level of
court yet carries on using up days that should otherwise be used by other
taxpayers.
[7]
In the Davitt
2001 decision of the then Associate Chief Justice Bowman, he used such words
and phrases as “wholly unmeritorious and frivolous argument that has no
possible chance of success”, “it is certainly not relief that there is any
remote chance of this or any other court awarding”, “This court is not a forum
for the propagation of political, social and economic theories”, “Moreover, the
arguments under section 15 of the Charter have no hope of success. They are
wholly without merit”, “devoid of merit”, “a rather fanciful conjecture”, “their
utter hopelessness”, “frivolous”, “[t]he appellant might wish to consider
speaking to his Member of Parliament”, “so demonstrably nonsensical that it is
sufficient merely to state it for it to be defeated by its own manifest
absurdity”, and
“[…]
it is frivolous, vexatious and scandalous and discloses no reasonable cause of
action. I have not for some time seen such an array of singularly
unmeritorious propositions. There can be no objection to law students debating
imaginative and indeed far‑fetched notions in a college common room. It
is no doubt a salutary and necessary part of their education. It is however a
waste of public funds and of the court’s time to advance such matters before
the courts.”, and
“Paragraph 249
of the notice of appeal reads as follows.
249. The
taxpayer requests that this appeal be dealt with expeditiously so that he can
make an assessment as to whether it is in his best interest to continue to
reside in Canada.
I
hope that I have dealt with this motion with sufficient expeditiousness to
comply with this rather presumptuous demand.”
[8]
In Davitt 2003, Justice McArthur
wrote:
[13] The
pyramid (Ponzi) scheme the Appellant referred to is novel, but is pleaded only
to provide context on which to analyze section 15 of the Charter. It
does not assist the Appellant's position.
[14] The
Appellant appears to have a fixation directed at the CPP and other
Canadian tax‑related legislation. The relief he seeks would probably cost
the Treasury billions of dollars. This Court is not the forum for these
colossal social upheavals. I believe that the Appellant can only find relief
from the Federal Parliament.
[15] I
urge the Appellant to cease arguing his social reforms before the Tax Court of
Canada. His extraordinary efforts would be better spent in other directions.
This Court's resources are better spent dealing with more worthy
appeals. . .
[9]
In Davitt 2004,
Justice Little used such language as “unacceptable”, “based upon dubious
or incorrect reasoning”, “[i]n my opinion these arguments are unfounded and
cannot be accepted”, “this argument is without merit”, and “the Notice of
Appeal is frivolous or vexatious and an abuse of the process of the Court”.
[10]
Last year Justice Sharlow
of the Federal Court of Appeal writing for the Court wrote:
These
are not valid foundations for an allegation of a reasonable apprehension of
bias. . . The difficulty here is that Mr. Davitt has chosen
the wrong procedure and the wrong court.
[11]
I have had the
opportunity to read and consider the full reasons of Justices Sharlow, Webb,
Mogan, Little, McArthur and Bowman as regards the applicable law on such a
motion and its application to the issues and relief raised by Mr. Davitt. I
need only say that I concur with them in their entirety. I have also read the
judgment of Chief Justice McLachlin of the Supreme Court of Canada dismissing
Mr. Davitt’s leave application on behalf of a panel comprised of the Chief
Justice and Justices Abella and Rothstein.
[12]
The Crown’s motions to
strike are allowed. Mr. Davitt's 2007 EI and CPP Notices of Appeal are
quashed.
[13]
This Court has full
power to regulate abuses of its process. See for example, Fournier v. Canada, 2005 FCA 131,
[2006] G.S.T.C. 52, in the Federal Court of Appeal and Rule 9(2)
as well as the decisions of this Court which have considered the relationship
between cost awards and abuse of process such as Bono v. M.N.R.,
2010 TCC 466, and Harold Isaac OP Sunrise Electrical v. M.N.R.,
2010 TCC 225. I have considered the Appellant’s position in the Notices of Appeal,
and his comments and submissions today in the context of the considerations
applicable to awards of costs generally and to how best regulate abuses of
process, which are summarized in the cases I have referred to and in our
court’s rules. On abuse of process, I would refer also to my reasons in Golden
et al. v. The Queen, 2009 TCC 396, 2009 DTC 1273, and
the Supreme Court of Canada authorities referred to therein, which decision has
been upheld by the Federal Court of Appeal. In these circumstances, I fix the
costs payable by the Appellant at $5,000 to be paid within 45 days.
[14]
William Shawn Davitt
has brought a series of very similar appeals and proceedings to this Court. They
have all been unsuccessful and the appeals have all been struck. Mr. Davitt
cannot be left unconstrained to continue to abuse the processes of this Court
by instituting vexatious proceedings. He might be described in current legal
parlance as a class of vexatious litigant. In order to prevent any further
abuses of this Court’s processes by Mr. Davitt, my order will deny
Mr. Davitt the right to file an EI or CPP appeal in this Court without
written leave of this Court having first been obtained. Nor will he be
permitted to represent another person in this Court in respect of such an
appeal if the issues raised in it are substantially similar to those in the
numerous Davitt appeals without leave of this Court having first been
obtained. Nor will he be allowed to institute any appeal in this Court or
represent another taxpayer in this Court if the appeal in either case raises
substantially similar issues to those raised in the Davitt appeals
without written leave of this Court having first been obtained. Any such leave
application shall be in writing and shall not exceed 10 pages in length.
[15]
Mr. Davitt has
raised concerns in his materials and in his submissions regarding the open
court principle and the Canadian Judicial Council’s publication Ethical
Judicial Principles. He raised these, as I understand him, in the context of
his concern that I not, in writing my reasons in this motion, engage in
constitutionally prohibited censorship and a denial of open public access to
this Court’s proceeding by not letting the Canadian public know his views by
summarizing each of the arguments advanced in his Notices of Appeal and in
argument today, and all of the relevant facts and evidence that, in his
submissions in his Notices of Appeal and in argument today, were relevant to
those arguments. There is no doubt that I am not obligated to do so, nor do I
imagine it could be possible for me to summarize his two Notices of Appeal,
which each run to hundreds of numbered paragraphs and each to more than
120 pages in length, to Mr. Davitt’s satisfaction.
[16]
However, to satisfy
Mr. Davitt’s concern, I will be attaching a copy of his Notices of Appeal
as schedules forming part of my order and I will also attach a copy of both the
court reporter’s transcript of today’s proceedings in its entirety and, if
necessary and to the extent appropriate, a copy of the transcript edited by me
to identify obvious errors in the transcription and punctuation.
[17]
Thank you very much
Ms. Paré, Madam Registrar, and Madam Court Reporter. We are adjourned for
today.
Signed at Ottawa, Canada, this 7th day of December 2010.
"Patrick Boyle"
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