Citation: 2007TCC418
Date: 20070723
Dockets: 2006-3135(IT)I
2006-3136(IT)I
BETWEEN:
TRUEMAN TUCK
YVONNE B. TUCK,
Appellants,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Sheridan, J.
[1] The Respondent brings a motion for an
Order:
1. striking out the Notice of Appeal in its entirety and dismissing
the appeal accordingly; or
2. in the alternative, granting an extension of time for filing a
Reply to the Notice of Appeal pursuant to subsection 18.16(1) of the Tax
Court of Canada Rules (Informal Procedure)(sic), to 30
days from the date of the Order of this Honourable Court disposing of the
present motion; and
3. such further and other relief as this Honourable Court deems
just.
[2] The grounds
for the Respondent’s motion are:
4. that the Notice of Appeal discloses no reasonable ground for
appeal;
5. that the Notice of Appeal is
scandalous, frivolous and vexatious;
6. that the Notice of Appeal is an
abuse of process of this Court, and;
7. such further and other grounds as counsel
may submit.
[3] The Respondent
brings a similar motion in respect of the Notice of Appeal of Yvonne Tuck, wife
of the Appellant. The motions were heard together. Ms. Tuck was not present at
the hearing but the Appellant advised the Court that he was authorized to
represent her at the hearing of the motion.
[4] The Appellant
served on the Respondent and filed with the Court a “Notice of Constitutional
Question” in respect of the Respondent’s motion to dismiss his Notice of
Appeal. In that document, the Appellant describes himself as “Trueman of the
Tuck family, aka Trueman, Trueman Tuck, Gerrard Trueman Tuck” and goes on to
say in paragraph (a) that he is:
… a
faith-based human being that was born … as a free-man citizen of the British
Commonwealth and believes that GOD created human beings in GOD’s image, as sons
and daughters of GOD. [Emphasis appears in original.]
[5] The Appellant
also filed another document entitled “Notice of Special Appearance in Propria
Persona” in which he is similarly described.
[6] In the “Notice
of Constitutional Question” filed in respect of Yvonne Tuck, Ms. Tuck is
described in the style of cause as “YVONNE BARBARA TUCK, aka YVONNE B. TUCK,
YVONNE TUCK, a federally created CAPITAL CORPORATE PERSON apparently created in
the 1960’s by the federal Canadian government, and Yvonne Barbara Tuck, aka
Yvonne Tuck, Yvonne B. Tuck a human being” [Emphasis appears in original.].
[7] According to the
Appellant’s submissions, the basis for the challenges contained in these
documents and in the Notices of Appeal is that the Appellants never
“contractually consented voluntarily to the current taxation schemes attempting
to be enforced by the [Respondent] against the Appellant”. Accordingly, in the case of
Trueman Tuck, the Appellant did not file income tax returns and his tax
liability was assessed under subsection 152(7) of the Income Tax Act.
Although Ms. Tuck filed a return, she joins her husband in disputing the
constitutionality of the Minister’s assessment powers. The Appellant challenges
the assessments on the further grounds that in the Notices of Assessment under
the heading “account number” are noted numbers which are their social insurance
numbers. The Appellant says they never “asked for” social insurance numbers and
accordingly, their “accounts”, and therefore the assessments, are not valid.
Finally, he argues that the assessments are without legal effect because in
them, his name and that of his wife have been typed in capital letters. When
challenged on the essential silliness of this point, the Appellant had the good
grace to retreat from, if not completely abandon, that line of argument.
[8] The Notice of
Appeal of the Appellant was filed on August 7, 2006. It is a long, rambling
document which, in addition to the points set out above, includes a series of
questions which the Appellant insists must be answered by the Minister or by
this Court as a condition precedent to his paying any tax. A portion of the
Notice of Appeal is also devoted to the alleged misdeeds of certain Canada
Revenue Agency officials. The Notice of Appeal of Yvonne Tuck, filed September
19, 2006, is essentially the same as the Appellant’s, though shorter and
modified slightly to reflect her specific circumstances.
[9] The Respondent
takes the position that the Notices of Appeal ought to be struck out and the
appeals dismissed.
[10] In considering
whether to strike a pleading, the facts alleged must be taken as true. Further,
the Court must be satisfied that it is “plain and obvious” that the impugned
claim is without merit.
Finally, the pleadings must be considered as drafted, without evidence to
rehabilitate any shortcomings. As counsel for the Respondent quite correctly
submitted, the case law is well settled that it is within Parliament’s power to
impose taxes on its citizens.
Accordingly, those portions of the Notice of Appeal which dispute the
Minister’s authority to assess tax liability are without merit. The same
applies to the allegations in respect of the behaviour of the Minister’s
officials: the jurisdiction of this Court is limited to determining the
correctness of the amount assessed; it does not extend to a consideration of
the conduct of the officials in making that assessment. With the exception of the
paragraphs considered below, the deletion of the above paragraphs from the
Notices of Appeal leaves little more than what I would describe as the
Appellant’s personal opinions on the unpalatability of paying taxes. These have
no place in properly drafted pleadings.
[11] Turning now to each Notice of Appeal, in the case of Ms. Tuck, although she filed an income tax return for
2004, nowhere in the Notice of Appeal does she specifically address the
Minister’s reassessment of that return. The closest she comes is in paragraph 6
of the section entitled “Closing Remarks”:
6. Should one or both of the Plaintiffs be deemed liable then the
Plaintiffs will request that this Honourable Court clarify the various legal
questions contained herein and provide a reasonable time for the Plaintiff or
Plaintiffs to both file the appropriate Court order documents with the
assistance of a Chartered Accountant.
[12] Her reference in
the above paragraph to “the appropriate Court order documents” seems to suggest
that Ms. Tuck is asking to be allowed to file a proper Notice of Appeal should
the present one be rejected. This is not an appropriate pleading. If Ms. Tuck
was aware in September 2006 that her Notice of Appeal was likely defective,
then was the time to draft it properly. In any case, it is not the task of the
Court to go about redrafting defective pleadings, especially where a party
has clearly elected to follow a particular litigation strategy:
21 It
is not the duty of a judge to redraft pleadings. It is his or her duty,
however, to closely examine a proceeding before determining that it cannot be
saved through proper amendments. To use the words of my brother Stone in
Krause…, the judge seized with a motion [to strike pleadings[6]] must decide
whether the document is “so defective that it cannot be cured by simple
amendment”. This determination requires a balancing act which cannot be subject
to any definite norms. Each proceeding is to be assessed on its own merits,
with consideration being given to, inter alia, the personal situation of the
party, the issues and arguments raised, the manner and tone in which they are
raised, the number and proportion of allegations that are defective and the
readiness of the amendments needed. Where the Court is dealing with a
self-represented litigant, it should resist being too easily put off by the
mere phrasing of allegations and arguments that do not fall within established
legal parameters.
[Footnote added.]
[13] By
the same token, the Appellant (who undoubtedly drafted Ms. Tuck’s Notice of
Appeal), devotes only one paragraph of his lengthy Notice of Appeal to the
details of the assessment of his 2002 and 2003 taxation years:
The Plaintiff
will also rely in the alternative, should the assessment be deemed valid that
the Plaintiff be allowed to immediately file the drafted income tax returns for
the 2002 and 2003 taxation years and that the determined liability be reviewed
by this Honourable Court based upon further evidence once the various critical
points of law are determined as outlined herein. These adjustments would
include the Plaintiff’s gross income, the dividend tax credits, personal
exemptions, business losses, and other normal deductions which are currently
missing from the Defendants’ deemed assessments for the 2002 and 2003 taxation
years and need to be credited in accordance with the normal practices.
[14] But
even so, this paragraph is directed, not at a determination of the correctness
of that assessment but rather, at his being allowed to do what he ought to have
done in the first place, to file his 2002 and 2003 income tax returns, documents
which, in paragraph 33 of his Notice of Appeal under the heading “Issues”, he
alleges he had already prepared “years ago … with professional assistance”. Notwithstanding
that fact, instead of filing his returns or getting on with a properly
formulated appeal of the arbitrary assessment, the Appellant elected to spend
his time drafting the voluminous documents and materials filed in these
matters, none of which focuses on the one area within this Court’s
jurisdiction; namely, the correctness of the Minister’s assessment.
[15] Because the Appellant represented himself at the hearing of
these motions, I permitted him more time than was perhaps merited to develop his
position. Among the many points of information provided to the Court was the
fact that he considered himself a sort of “unlicensed” lawyer and that as such,
he had appeared frequently in Court and learned a lot about litigation from
these experiences. He went on to inform the Court that he was not basing his
case on the so-called “natural person” theory for avoiding paying his taxes.
Despite such assurances, however, many of the paragraphs in the Notices of
Appeal bear a certain similarity to the boiler plate clauses promoted and used
by the anti-tax groups in furtherance of their objectives.
[16] The Appellant
insisted in his presentation that he was quite willing to file returns and pay
taxes - if only he were given a legal basis for doing so. The more the
Appellant expanded on his views, however, the less convinced I was of his bona
fides. Having patiently listened to what effectively became a rant against
the Government of Canada, the Prime Minister, the Minister of National Revenue,
Canada Revenue Agency officials, politicians, judges and the general
unpleasantness of having to pay taxes, I concluded that the appeals have more
to do with providing a forum for the Appellant’s anti-tax theories than seeking
a determination of the correctness of the assessments. Interestingly, though
the Appellant fervently objects to paying taxes himself, he has no qualms about
availing himself of the various government services paid for by the tax dollars
of hard-working Canadians who regularly fulfill their obligations under the Act.
[17] All in all, the
arguments advanced and the materials filed by the Appellant lead me to believe
that the Notices of Appeal have little, if anything, to do with seeking the
relief provided under the Act and were a waste of the time of the Court
and the Respondent and of taxpayers’ dollars. In such circumstances, I am
mindful of the words of the Federal Court of Appeal in Dominique Fournier v.
Her Majesty the Queen, 2005 FCA 131:
[11] The
judge stated that he had no jurisdiction to impose costs on an appellant who
unnecessarily delayed an appeal process initiated within an informal proceeding.
I should point out that the Tax Court of Canada has the inherent jurisdiction
to prevent and control an abuse of its process: see Yacyshyn v. Canada,
[1999] F.C.A. No. 196 (F.C.A.).
[12] The
awarding of costs is one mechanism for preventing or remedying abusive delays
or procedures: see Blencoe v. British Columbia (Human Rights
Commission), [2000] 2 S.C.R. 307, at paragraphs 179 and 183. In Sherman
v. Canada (Minister of National Revenue – M.N.R.), [2003] 4
F.C. 865, at paragraph 46, this Court addressed the issue in the following
terms:
It is now
generally accepted that an award of costs may perform more than one function.
Costs under modern rules may serve to regulate, indemnify and deter.
They regulate by promoting early settlements and restraint. They deter
impetuous, frivolous and abusive behaviour and litigation. They seek to
compensate, at least in part, the successful party who has incurred,
sometimes, large expenses to vindicate its rights. [Emphasis appears in
original.]
[18] The striking out of a pleading is a drastic step and
one which ought not to be taken lightly. Having
carefully reviewed the pleadings and considered the submissions of the parties,
however, I am persuaded by the Respondent’s argument that the Notices of Appeal
ought to be struck out in their entirety and the appeals dismissed. Given the
frivolous and abusive nature of the pleadings, I am further satisfied that circumstances
warrant the exercise of my discretion to impose costs against the Appellants to
prevent and control an abuse of the process of the Tax Court of Canada.
Accordingly, the Appellants, Trueman Tuck and Yvonne Tuck, shall each pay costs
to the Respondent in the amount of $100.
Signed at Ottawa, Canada, this 23rd day of July, 2007.
“G.A. Sheridan”
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