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Citation: 2003TCC412
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Date: 20030618
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Docket: 2002-2807(CPP)
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BETWEEN:
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WILLIAM SHAWN DAVITT,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR ORDER
McArthur J.
[1] This is a motion by the Respondent
for an Order striking out the Appellant's Notice of Appeal
or, alternatively, striking out paragraphs 1 to 115 of the Notice
of Appeal or any combination thereof. The grounds for the motion
are:
1. The Notice
of Appeal or parts of the Notice of Appeal are scandalous,
frivolous or vexatious or an abuse of the process of the Court,
as set out in Rule 53(b) and (c) of the General
Procedure Rules;
2. the Notice
of appeal discloses no reasonable cause of action, as set out in
Rule 58(1)(b) of the General Procedure Rules;
3. the Tax
Court of Canada does not have the jurisdiction to grant the
relief sought by the Appellant;
4. rule 12 of
the General Procedure Rules;
5. section 12
of the Tax Court of Canada Act, R.S.C. 1985, c. T-2, as
amended and s. 171(1) of the Income Tax Act, R.S.C. 1985,
c.1 (5th Supp.); and
[2] Section 58 of the Tax Court of
Canada Rules (General Procedure) sets out circumstances under
which pleadings may be struck out. It reads:
58(1) A party may apply to the Court,
(a) for the
determination, before hearing, of a question of law raised by a
pleading in a proceeding where the determination of the question
may dispose of all or part of the proceeding, substantially
shorten the hearing or result in a substantial saving of costs,
or
(b) to strike
out a pleading because it discloses no reasonable grounds for
appeal or for opposing the appeal,
and the Court may grant judgment accordingly.
[3] This motion is very similar to a
motion heard by Judge Bowman in William Shawn Davitt v. The
Queen, 2001 DTC 702. The first appeal was focused on the
Income Tax Act and other legislation whereas the present
appeal concerns the Canada Pension Plan (CPP) only.
The motion to strike out the first notice of appeal is, for the
most part, identical to the submissions in the present motion.
Judge Bowman granted the Respondent's motion by striking out
the Appellant's entire appeal. The major arguments in the
first Notice of Appeal are repeated in the current Notice of
Appeal. These include the following.
Charter Challenge
[4] The Appellant has pleaded certain
facts regarding the CPP at paragraphs 11 through 16 in the
Notice of Appeal. Those same facts were also pleaded in the first
Notice of Appeal at paragraphs 116 through 121. The Appellant
makes a section 15 Charter analysis on the pleaded
facts at paragraphs 24 through 30 of the Notice of Appeal. The
analysis is the same as in the first Notice of Appeal at
paragraphs 124 through 134 with certain elaborations. The
thrust of the argument pleaded is as follows:
24. The Appellant submits
the CPP contribution rates set out in section 11.1 of the CPP
Act discriminate on the basis of age contrary to
subsection 15(1) of the Charter by requiring younger
Canadians to make contributions to the CPP at substantial higher
rates than older Canadians even though younger Canadians are not
entitled to receive higher CPP benefits. The
government's policy of grossly under-funding the CPP, in
conjunction with the contribution rates set pursuant to section
11.1 operate to transfer wealth from younger Canadians to older
Canadians; resulting in the unjust enrichment of older Canadians
at the expense of younger Canadians.
Contracts with Minors are Void
[5] The Appellant submits at
paragraphs 35 through 38 of the Notice of Appeal that his CPP
liability is void as a result of the rule that debt contracts
with infants are void at common law. That same argument was
presented in the first Notice of Appeal at paragraphs 33 through
37, but with respect to income tax liability. The thrust of the
argument pleaded is as follows:
38. A significant portion
of the unfunded liability of the CPP accrued prior to the period
the Appellant reached the age of majority.
Breach of Fiduciary Duty
[6] The Appellant submits at
paragraphs 39 through 42 of the Notice of Appeal that the
Government of Canada has breached its fiduciary duty to Canadian
children by eventually making them responsible to fund programs
that support their elders. That same argument was presented in
the first Notice of Appeal at paragraphs 38 through 42, but with
respect to income tax liability. The thrust of the argument
pleaded is as follows:
42. The Government of
Canada's policy of grossly under-funding the CPP and its
subsequent attempt to transfer this unfunded liability to
Canadian children constitutes a breach of this fiduciary
duty. This policy is contrary to the interests of Canadian
children. Its effect is to transfer the burden of funding
the CPP from older Canadians to younger Canadians resulting in
the unjust enrichment of older Canadians to the detriment of
younger Canadians.
Odious Debts
[7] The Appellant submits at
paragraphs 58 through 106 of the Notice of Appeal that the
Government of Canada's reporting practices are unsatisfactory
and as such, he is not liable for CPP. That same argument was
presented in the first Notice of Appeal at paragraphs 55 through
58, but with respect to income tax liability. The thrust of
the argument pleaded is as follows:
58. Subsection 15(1) of
the Charter should be interpreted in a manner consistent with the
laws governing agency relationships and the Doctrine of Odious
Debts. These rules operate to protect Canadians, and
especially young Canadians, from responsibility for debts and
liabilities that do not relate to legitimate government
expenditures and that were incurred by corrupt and oppressive
governments.
UN Rights of the Child
[8] The Appellant submits at
paragraphs 107 through 110 of the Notice of Appeal that the CPP
exploits children contrary to the United Nations Declaration of
the Rights of the Child. That same argument was presented in the
first Notice of Appeal at paragraphs 59 and 60, but with respect
to income tax liability. The thrust of the argument pleaded
is as follows:
107. The government's policy of
under-funding the CPP and its attempt to transfer the financial
burden of the funding the CPP onto future generations via section
11.1 of the CPP Act is a form of child exploitation,
contrary to the United Nations Declaration of the Rights of the
Child. The protections under subsection 15(1) of the
Charter should be interpreted in a manner consistent with
this international standard.
New Argument - CPP Pyramid Scheme
[9] The Appellant has pleaded an
argument in this appeal that was not present in the first appeal.
Paragraphs 43 through 57 of the Notice of Appeal compare the
CPP to paragraph 206(1)(e) of the Criminal
Code - pyramid schemes. The thrust of the argument is pleaded
as follows:
44. The manner of funding
the CPP resembles a Ponzi or pyramid-selling scheme.
Webster's dictionary defines a Ponzi scheme as a fraudulent
investment scheme in which funds paid in by later investors are
used to pay artificially high returns to the original investors,
thus attracting more funds.
[10] In addition to more minor amounts, the
Appellant requests "punitive damages of $11,000,000"
pursuant to section 24 of the Charter.
Analysis
[11] I have had the advantage of reading
Judge Bowman's decision dealing with an appeal by the same
Appellant employing the same submissions. I agree with his
analysis and conclusion in its entirety. It is an abuse of
process for the Appellant to present such a similar appeal on the
chance another judge may buy the same submissions.
[12] In reply to the Respondent's
motion, the Appellant provided five books of authorities
containing over 1,000 pages. I do not pretend to have scrutinized
all submissions. This Court does not have the omnipotence to do
what the Appellant is requesting. My thoughts could not be better
expressed than the following from Judge Bowman in the first
Davitt motion:
24 This court is not
empowered to do any of the things asked for. Our function is to
hear appeals from assessments made under certain federal
statutes. Generally, we can allow or dismiss appeals, and vacate
or vary assessments or refer the matter back to the Minister of
National Revenue for reconsideration and reassessment. Like all
courts this court has certain powers under the Canadian
Charter of Rights and Freedoms where a person's rights
and freedoms under the Charter have been infringed but
those powers must be exercised within the jurisdiction that
Parliament has conferred on the court, as for example in
O'Neill Motors Limited v. The Queen, 96 DTC 1486,
aff'd 98 DTC 6424 (F.C.A.).
25 What the
appellant seeks here is not within those powers or that
jurisdiction. The amendment of an act of Parliament is within the
competence of the legislative, not the judicial, branch of
government.
29 There are
procedures for appealing to this court from determinations or
assessments under the CPP. They have not been followed. There are
limitations to the type of relief that this court can give in
such appeals. The relief sought here is not the type of relief
that this court can give. Moreover, the amendment of legislation
is not something that is available as a remedy that courts can
give under the Charter.
37 There is no more
merit in the positions advanced with respect to the
so-called "claw-back" of Old Age Security
benefits than there was with respect to employment insurance and
the CPP. Section 15 of the Charter cannot be invoked every
time someone dislikes a provision of the Income Tax Act.
The fact that social benefits are unequally distributed does not
of itself justify a remedy under the Charter. The
amendment of fiscal or any other legislation to correct some
perceived or imagined inequity is not something that the
Charter empowers the court to do. Indeed the arguments
here are even more devoid of merit than with respect to the
Employment Insurance Act and the CPP. The appellant is not
of an age where he might receive Old Age Security benefits. The
fact that they might be "clawed-back" some thirty years
hence (assuming the legislation remains unchanged -- a rather
fanciful conjecture) is no basis upon which any action of this
court could be based. This is clear from the judgment of Dickson,
J. in Operation Dismantle (supra) at pages 456-457.
43 This is not
something this court can do. The appellant might wish to consider
speaking to his Member of Parliament.
52 Paragraphs 245 to
248 argue that the court should ignore procedural errors or
omissions since to strike out on such grounds would be contrary
to the Charter. To say that adherence to procedural
requirements constitutes a violation of a litigant's rights
under the Charter is a proposition that is so demonstrably
nonsensical that it is sufficient merely to state it for it to be
defeated by its own manifest absurdity.
53 I am in any event
not striking out this appeal on procedural grounds. I am striking
it out because 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.
These comments apply equally to the present motion.
[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. The motion is granted and the appeal is struck
out in its entirety, with costs to the Respondent.
Signed at Ottawa, Canada, this 18th day of June, 2003.
J.T.C.C.
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