Date: 19980323
Docket: T-10-98
Ottawa, Ontario, the 23rd day of March 1998
Present: The Honourable Mr. Justice Pinard
Between:
PIERRE JOLI-COEUR, RETIREE
2025, rue Brûlant
Sillery, Quebec
G1T 1G1
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
| Notice of motion by Her Majesty the Queen for an order that the plaintiff"s statement of claim be struck out on the ground that it discloses no reasonable cause of action. |
|
[Rule 419(1)(a) of the Federal Court Rules]
ORDER
The motion is granted and the statement of claim is struck out, the whole with costs.
YVON PINARD
JUDGE
Certified true translation
Peter Douglas
Date: 19980323
Docket: T-10-98
Between:
PIERRE JOLI-COEUR, RETIREE
2025, rue Brûlant
Sillery, Quebec
G1T 1G1
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
PINARD J.:
[1] The defendant"s motion under Rule 419(1)(a ) of the Federal Court Rules seeks to have the plaintiff"s statement of claim struck out on the ground that it discloses no reasonable cause of action.
[2] The plaintiff"s action appears to be based on an administrative decision made by the Minister of National Revenue under section 224.1 of the Income Tax Act , R.S.C., 1985 (5th Supp.), c. 1, as amended, which reads as follows:
| SECTION 224.1: Recovery by deduction or set-off. |
|
| Where a person is indebted to Her Majesty under this Act or under an Act of a province with which the Minister of Finance has entered into an agreement for the collection of the taxes payable to the province under that Act, the Minister may require the retention by way of deduction or set-off of such amount as the Minister may specify out of any amount that may be or become payable to the person by Her Majesty in right of Canada. |
|
[3] After indicating in paragraphs 1 and 2 of the statement of claim that he receives $515.32 a month as a spouse"s allowance from the Ministère de la Sécurité du revenu, the plaintiff refers in paragraph 3 to the decision made by the Minister of National Revenue under section 224.1 of the Income Tax Act . Paragraph 3 states that on or about October 31, 1997, the Minister of National Revenue required the retention of the monthly spouse"s allowance up to a maximum of $50,718.30 by way of set-off of a tax liability of the plaintiff. The only other paragraphs of the statement of claim, namely paragraphs 4, 5, 6 and 7, basically relate to the Minister of National Revenue"s decision consisting in the requirement he issued under section 224.1 of the Income Tax Act . Paragraph 4 indicates that the Minister of Income Security has indeed since then retained the amounts otherwise owing to the plaintiff; paragraph 5 contains the single allegation that the amounts referred to in the requirement cannot, by their very nature, be the subject of set-off; paragraph 6 adds that the tax liability alleged in the requirement is non-existent because it is statute-barred; and finally, paragraph 7 states that "this situation" is prejudicial to the plaintiff.
[4] The relief then sought in the statement of claim must therefore necessarily be connected with the Minister of National Revenue"s decision or requirement. The first form of relief sought is in the nature of mandamus and, by counsel for the plaintiff"s own admission, is simply the result of obtaining the declaratory judgments sought in the next two items. The purpose of these declaratory judgments is clearly to quash the decision or requirement on the ground that the statutory set-off in question is unlawful and that the tax liabilities to which it relates are statute-barred. Finally, before applying for costs, the plaintiff claims damages, and there is no allegation in the statement of claim that might connect this claim to anything other than the decision or requirement concerned.
[5] Aside from the damages and costs, all the forms of relief sought in the action are remedies provided for in paragraph 18(1)(a) of the Federal Court Act, which may, according to subsection 18(3), be obtained only on an application for judicial review. Furthermore, the plaintiff alleges no negligence on which the damages claimed might be based,1 and the costs sought are purely incidental.
[6] Accordingly, I must find that the plaintiff"s statement of claim discloses no reasonable cause of action, and it must be struck out with costs.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
March 23, 1998
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-10-98
STYLE OF CAUSE: Pierre Joli-Coeur v.
Her Majesty the Queen
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: March 11, 1998
REASONS FOR ORDER BY PINARD J.
DATED: March 23, 1998
APPEARANCES:
Patrick Poulin FOR THE PLAINTIFF
Claude Morissette FOR THE DEFENDANT
SOLICITORS OF RECORD:
Joli-Coeur, Lacasse, Lemieux FOR THE PLAINTIFF
Simard, St-Pierre
Trois-Rivières, Quebec
George Thomson FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario
__________________
1 See Sultan Allibhai v. Her Majesty the Queen (November 8, 1996), T-354-96 (F.C.T.D.); Piché v. Canada (January 25, 1996), T-1672-95 (F.C.T.D.); Kibale v. Canada (February 8, 1994), A-1486-92 (F.C.A.); and [1983] 1 S.C.R. 205">Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205.
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