Docket: 2012-3088(IT)G
BETWEEN:
ADRIAN CASSA,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Motion
heard on January 21, 2013 at Toronto, Ontario and Reasons for Order delivered orally
from the Bench on January 23, 2013
Before: The Honourable
Justice Diane Campbell
Appearances:
|
For the Appellant:
|
The
Appellant himself
|
|
Counsel for the Respondent:
|
H. Annette Evans
Rishma Bhimji
|
____________________________________________________________________
ORDER
UPON Motion by the Respondent dated January 10, 2013
for:
1. An Order striking
the Amended Notice of Appeal filed on November 20, 2012;
2. In the event that
this Court does not grant an Order striking out the Amended Notice of Appeal
and/or dismissing the Appeal, an Order extending the time for the respondent to
serve and file a Reply to the Amended Notice of Appeal to 60 days after the
date of the Order disposing of the within motion;
3. In the alternative,
in the event that the Court grants an Order allowing the appellant leave to
amend by permitting filing of a Further Amended Notice of Appeal, an Order
extending the time for the Respondent to serve and file a Reply to the Further
Amended Notice of Appeal to 60 days after the date of service of the Further
Amended Notice of Appeal; and
4.
The costs of this
motion in any event of the cause;
(Respondent’s Amended Notice of Motion,
pages 1 and 2, paragraphs 1 to 4)
AND WHEREAS, at the hearing of the Motion,
Counsel for the Respondent amended the relief sought to include the Appellant’s
Further Amended Notice of Appeal filed January 17, 2013, which was filed by the
Appellant subsequent to being served with the Respondent’s Amended Notice of
Motion;
AND UPON hearing submissions of the
parties;
IT IS ORDERED THAT:
The Respondent’s Motion to strike the
Amended Notice of Appeal filed on November 20, 2012 and the Further Amended
Notice of Appeal filed on January 17, 2013 is granted;
Costs are awarded to the Respondent in the
amount of $1,000, payable by the Appellant forthwith;
All in accordance with the attached Reasons for Order.
Signed at Ottawa, Canada, this 1st day of February 2013.
“Diane Campbell”
Citation: 2013TCC43
Date: 20130201
Docket: 2012-3088(IT)G
BETWEEN:
ADRIAN CASSA,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Campbell J.
[1]
This is a Motion by the
Respondent to strike the Appellant’s Further Amended Notice of Appeal filed
with the Court on January 17, 2013.
[2]
The Appellant made two
prior attempts to the filing of his Further Amended Notice of Appeal with a
Notice of Appeal originally filed on July 20, 2012 and an Amended Notice of
Appeal filed on November 20, 2012.
[3]
The content in all of
the Appellant’s documentation is similar to those that were before me on
Motions by the Respondent in June of last year. These appeals form part of a
large group that I have been assigned to case manage. About half are
represented by legal counsel while the remainder are self-represented. Because
of the thread of similarities in wording in hundreds of these appeals, it is
apparent that these Appellants have received “counsel” from a third party. Such
third parties are referred to by Associate Chief Justice Rooke of the Alberta
Court of Queen’s Bench in Meads v. Meads, 2012 ABQB 571, as “gurus”.
[4]
The majority of the
appeals that have come before me on these Motions have employed the following
argument in order to have their tax returns accepted as filed and presumably
avoid the proper payment of the appropriate taxes or the avoidance of other tax
obligations that the Income Tax Act (the “Act”) might otherwise
impose upon them. That argument goes like this: If the Minister of National
Revenue (the “Minister”) does not issue a Notice of Confirmation within
the time set out in paragraph 169(1)(b) of the Act, then the
taxpayer’s return has not been “proved to be incorrect” and shall be accepted
as filed. Therefore, it follows that this Court should vacate the Minister’s
assessment.
[5]
I dealt with this issue
in my Reasons in similarly worded appeals that were before me in June, 2012. At
that time, I canvassed the caselaw, including a number of Federal Court of
Appeal decisions and made it clear that vacating an assessment for the
Minister’s delay will not be an appropriate remedy and not one that I would
grant. In those same Reasons, I made it clear that the documentation required
to commence their appeals in this Court must comply with the Tax Court of
Canada Rules (General Procedure) (the “Rules”) and,
particularly, Form 21A – that is, the Notices of Appeal must contain 1) the
material facts upon which they rely to dispute the assessment and 2) a
statement of the issues that will be before this Court.
[6]
Almost all of these
appeals are commenced pursuant to the general procedure Rules and
therefore must comply with the procedural rules that govern those
types of appeals. The first step is to file the proper Notice of Appeal – one
to which the Crown can properly respond. I have attempted to give as much
guidance and time as possible to these self-represented individuals, being
mindful that each of them have chosen to come to this Court to represent
themselves. They have every right to do so. However, it must be remembered that
I cannot provide legal advice, that they must either retain legal counsel or
represent themselves and not through agents, trustees or powers of attorney
and, finally, that this is a court, not a forum for debate with the presiding
Judge.
[7]
The Respondent is
requesting that I strike the Appellant’s Amended Notice of Appeal and Further
Amended Notice of Appeal pursuant to Rule 53 of the Rules.
[8]
Rule 53 reads as
follows:
53.
The Court may strike out or expunge all of part of a proceeding or other
document, with or without leave to amend, on the grounds that the pleading or
other document,
(a) may prejudice or delay the fair hearing of the action,
(b) is scandalous, frivolous or vexatious, or
(c) is an abuse of the process of the Court.
This provision gives the Court a power which must be
exercised with great care and only in exceptional circumstances. As stated at
paragraph 11 by former Chief Justice Bowman in Sentinel Hill 1999 Master
Limited Partnership (Designated member of) v. The Queen, 2007 TCC 742, “… their
application should be reserved for the plainest and most egregiously senseless
assertions …”. At paragraph 4, he outlined the principles that this Court
should apply on a Motion to strike:
[4] I shall begin by outlining what I
believe are the principles to be applied on a motion to strike under
Rule 53. There are many cases in which the matter has been considered both
in this court and the Federal Court of Appeal. It is not necessary to quote
from them all as the principles are well established.
(a) The facts as alleged in the impugned pleading must
be taken as true subject to the limitations stated in Operation Dismantle
Inc. v. Canada, [1985] 1 S.C.R. 441 at 455. It is not open to a party
attacking a pleading under Rule 53 to challenge assertions of fact.
(b) To strike out a
pleading or part of a pleading under Rule 53 it must be plain and obvious
that the position has no hope of succeeding. The test is a stringent one and
the power to strike out a pleading must be exercised with great care.
(c) A motions judge should avoid usurping the function of
the trial judge in making determinations of fact or relevancy. Such matters
should be left to the judge who hears the evidence.
(d) Rule 53 and not Rule 58, is the appropriate
rule on a motion to strike.
[9]
Now, when I look at the
Appellant’s three attempts at getting his Notice of Appeal to comply with the Rules,
he has failed to do so even in regard to the most basic aspect of his appeal:
his decision to forge ahead with his paragraph 169(1)(b) argument
despite my June 2012 Reasons and despite sitting in court listening to me
reiterate to a number of Appellants that preceded him that that argument was
without merit and could not succeed. Even if I separate that portion of the
appeal document that deals with paragraph 169(1)(b), the balance
contains disjointed and meaningless statements and assertions that have no hope
of succeeding in this Court or any other. While Mr. Cassa’s oral submissions
might have shed some light on what material facts he was actually relying upon,
they instead muddied the waters even further. They amounted to nothing more
than an absurd blend of the ridiculous arguments he included in his appeal
documents. His documentation and his submissions engaged in the so-called
“de-taxer” language. Those included:
·
“the Appellant, Adrian
Cassa, acted as agent for an undisclosed Principal”;
·
“Principal is a
living-soul, flesh-and-blood man”;
·
“Principal is commonly
called Adrian of the Cassa family”;
·
“Principal earned wages
in exchange for labour”;
·
“the wages were
collected by Appellant”;
·
“Appellant incurred
labour expenses”;
·
“Appellant did not use
or benefit from any Expenses”.
And continuing on, the Appellant claims:
·
“an individual is not
defined as being a man under the ITA”;
·
“in Section 248(1) of
the ITA a business is an “undertaking of any kind whatever””;
·
“acting as an agent is
a business”;
·
“without Principal,
Appellant could not continue acting as an agent”;
·
“without Appellant, Principal
could not continue to labour”.
And in reference to this last statement, he contended
in his submissions that the Act contains no provision which allows
government to tax labour. The Appellant also suggested I was required to take
judicial notice of the difference between facts and inference, between facts
and conjecture and between facts and assumptions.
[10]
Included in his appeal
was a list of the endless statutory provisions he intended to reply upon. Those
included “the Bills of Exchange Act, Canadian Charter of Rights and Freedoms, Canadian
Bill of Rights, Income Tax Act of Canada, Income War Tax Act, 1917, Civil Code
of Quebec, Canada Evidence Act, UNCITRAL, Vital Statistics Act, UPU Agreements,
Criminal Code and UCC” (Amended Notice of Appeal, paragraph 37). However, he
gives no indication of why or how he intended to incorporate this divergent and
largely irrelevant array of legislation into his appeal and, more particularly,
the precise provisions of each piece of legislation upon which he intended to
rely.
[11]
The Appellant’s Further
Amended Notice of Appeal is fraught with incomprehensible arguments and
allegations. It fails to identify any specific material facts and focuses
almost entirely on avoiding obligations imposed under the Income Tax Act.
[12]
I referred in the
beginning of these Reasons to the Meads case. The Appellant referred to
the decision as “prejudicial and premature” in an attempt to persuade me, I
assume, to ignore those Reasons. Of course, that suggestion is as absurd as
many of his other assertions. The Meads decision contains an exhaustive
review and analysis of litigants who engage in a variety of litigation
techniques and arguments, promoted by so-called gurus and designed to interfere
with court operations and proceedings. Associate Chief Justice Rooke refers to
such litigants under the global name “Organized Pseudolegal Commercial Argument
Litigants” (“OPCA”), although he acknowledges that they may be identified by
any number of names and that some such individuals and groups have no
particular identity except for the types of arguments and schemes they attempt
to put before the Canadian courts.
[13]
Among many other such
groups, the Meads decision identifies specifically the so-called “de-taxers”
or those attempting to avoid income tax obligations as well as the “freemen on
land” notion and the double or split person concept. The Cassa appeal contains
all of the foregoing elements. In the Further Amended Notice of Appeal, the
Appellant refers to the “principal” as commonly called “Adrian of the Cassa
family”. In the Certificate of Service, he engages in the following similar language:
“Comes, Adrian Cassa, as agent for the free will man, commonly called Adrian of the Cassa family, the undisclosed principal”. Apparently, this is a common
strategy in which such litigants engage. As the Meads decision notes,
this duality argument is both a strange and confusing concept which uses an
artificial and fictitious division of the person in an attempt to support an
otherwise absurd argument. Whatever it is, it is without merit, it detracts
from the court proceedings and it is total and utter nonsense. My method of
dealing with any attempt by the Appellant to employ this nonsense in my Court
was to simply ignore it.
[14]
The majority of the
Appellant’s proposed appeal is peppered throughout with many of the concepts
and language referred to in Meads. It contains statements and assertions
that are unintelligible, incomprehensible, meaningless, irrelevant and
factually hopeless. I consider those types of arguments an abuse of the Court’s
processes. Such “song and dance” routines hinder and limit the availability of
Court resources for those self-represented litigants who are making an honest
attempt to advance their appeals through the Court system in a timely manner.
[15]
I will allow the
Respondent’s Motion to strike the Appellant’s Further Amended Notice of Appeal,
with costs to the Respondent of $1,000 payable forthwith. As Case Management
Judge, although these Reasons have been delivered orally, I intend to have them
issued forthwith in writing. There are other such appeals waiting in the wings
and I trust that my Reasons will give some guidance on the type of statements
and assertions that cannot and will not promote the advancement of their
appeals. Those Appellants that remain unsure of the avenue they should pursue
may benefit from retaining legal counsel. As Case Management Judge, it is my
aim to move the appeals along in an orderly fashion with the end result being a
fair hearing for all those Appellants that comply with the Rules
governing these proceedings and any Reasons that I have issued or will be
issuing.
Signed at Ottawa, Canada, this 1st day of February 2013.
“Diane Campbell”
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