Zucawich v. Canada, docket T-2768-91

Date: 19980703

Docket: T-2768-91

BETWEEN:

     GERALD ZUCAWICH,

     Appellant,

     - and -

     HER MAJESTY THE QUEEN,

     Respondent.

     REASONS

MULDOON, J.

[1]      THE COURT: That's something to which he'd be more likely testifying under oath. It's called a Notice of Information. "In examining the defendant's affidavit of documents, it is plain that the deponent, Floyd Rayner," --- who, by the way, has now retired from the Department -- "did not make full disclosure." Was that something you can testify to, or you could cross-examine him on his affidavit? (2), "The defendant has, and continue to violate the plaintiff's constitutional rights", without telling us what they are, and which constitutional rights "the plaintiff is not obligated to the defendant until the defendant restore and guarantee the plaintiff's constitutional rights", again without saying which constitutional rights. (4), "the plaintiff request the disclosure of the date the defendant claim litigation herein was contemplated, and the names of the people involved." I don't understand that. It doesn't make sense to me. The Court would agree with whoever told you that this isn't a proper document to be filed, because it's garbage.

[2]      MR. ZUCAWICH: Okay, but that's what I'm explaining, Your Honour, I don't know the law or the precedents and I need guidance.

[3]      THE COURT: Well, you need guidance. You had Mr. Chappell of Aikins MacAulay -- now just a minute -- I think that was filed for you; wasn't it? Just hand on a minute. It was filed. There's a note to the file, "Received", but it's on our file. It has been all along. It's dated March 23rd, 1994. It says "On Monday, March 21st, 1994, Mr. Gerald Zucawich, Plaintiff, submitted a "Notice of Information" for filing. After a review of Mr. Zucawich's file, I informed him that there was no provision for filing said document. Mr. Zucawich insisted that the document be filed. I informed him that the document will be "received and placed on file", but not filed". You don't recognize the person who told you that. It is signed by Mr. Coutu, who is the Registry Officer here today, and it's on your file.

[4]      MR. ZUCAWICH: But with great respect, all it demonstrates is we were trying to proceed, but were in need of direction, Your Honour.

[5]      THE COURT: What about an affidavit of documents on your part, which the defendant has been asking for years? What documents do you have which bear on this case? That's what they're asking for. If you're going to invoke the powers of the Court to dismiss their claim for income tax, you have to show what documents you have which tend to prove that their claim for income tax should be dismissed. But you haven't filed an affidavit of documents, and they've been asking for one for years. You know Floyd Rayner filed an affidavit of documents, as is plain, on behalf of Her Majesty the Queen, our Minister of National Revenue, but when they ask Gerald Zucawich to do the same, he doesn't do it. Years go by, they ask him and they ask him, and he doesn't do it. The Minister does his part, but Gerald Zucawich won't do his part.

[6]      MR. ZUCAWICH: Well, Your Honour, we're trying to get legal counsel to help us. We know we need -- financially it looks like we can't afford it, so -- I would hate to see this case dropped because of --

[7]      THE COURT: They filed, what is it, 127 documents, something like that, and say here, "Here are all the documents we've got. We did a net worth assessment on Mr. Zucawich from his own papers, so that's how we got our net worth, not from something we made up, but from his papers". Mr. Wong, who appeared on your behalf in the Tax Court said he didn't have any objective information, he got it all from you.

[8]      MR. ZUCAWICH: And in the Tax Court of Canada we requested to examine Sandra Campbell who drew up the net worth statement, and the Crown refused us.

[9]      THE COURT: But you had Mr. Wong, didn't you, and Mr. Wong ---

[10]      MR. ZUCAWICH: Right, he filed a net worth statement and Revenue Canada's ---

[11]      THE COURT: -- and then Judge Goetz gave his decision. Well, anything else, Mr. Zucawich?

[12]      MR. ZUCAWICH: And during the Court Mr. Shipley agreed to use our net worth statement, and then he asked for leave to fly back to Toronto and Mr. Gosman stayed.

[13]      THE COURT: And Judge Goetz gave a decision.

[14]      MR. ZUCAWICH: Right.

[15]      THE COURT: And by filing a statement of claim in this Court, by starting an action in this Court, you have, as you're entitled to do, attacked Judge Goetz's decision.

[16]      MR. ZUCAWICH: The statement of claim was filed before we received a copy of his decision because of the time limits.

[17]      THE COURT: November 1st, 1991 is when the statement of claim was filed, and you say "Notice of Appeal is hereby given from a judgment of the Tax Court of Canada pronounced on July 30, 1991 at Winnipeg, Manitoba, whereby the plaintiff's appeal in respect to the 1981, 1982, and 1984 taxation years was dismissed." and this is November 1st, you say. That's long after Judge Goetz's decision. As you say there, it was pronounced on July 30th.

[18]      MR. ZUCAWICH: Right, but we didn't receive the transcript or the copy of the judgment prior to that.

[19]      THE COURT: How did you know the name of the court reporter who, you allege, was part of a conspiracy to deprive you of your constitutional rights? You say in paragraph five of your statement of claim, Judge J.B. Goetz, Mr. J. Shiply, Violette Mchaylow and others conspired to deprive the plaintiff of his constitutional rights, including the right to a fair trial, and the right of innocent until proven guilty." So that's the name of the court reporter.

[20]      MR. ZUCAWICH: Right.

[21]      THE COURT: Did you ask her name during the course of the trial? How did you find out her name without a transcript?

[22]      MR. ZUCAWICH: Because this was the second session of this Court. We knew her name.

[23]      THE COURT: Has she been reporting a previous case?

[24]      MR. ZUCAWICH: This Court case was in two parts, Your Honour.

[25]      THE COURT: Yes.

[26]      MR. ZUCAWICH: Excuse me, Your Honour.

[27]      THE COURT: Sure, have a seat again. Another five-minute recess perhaps.

[28]      MR. ZUCAWICH: Just -- I'll be okay if I sit down I think.

[29]      THE COURT: Okay, thank you.

[30]      MR. ZUCAWICH: And we asked the Mounties to seize the tape recordings because we wanted to protect the evidence and the Mounties said it wasn't their job to protect the evidence, just hand it over to the provincial government now.

[31]      THE COURT: I've never heard of evidence needing protection in that way.

[32]      MR. ZUCAWICH: Well, in this case it needed protection.

[33]      THE COURT: Why are you so important that the Government of Canada.

[34]      MR. ZUCAWICH: That's what I would like to know.

[35]      THE COURT: Well, I think you're not. I think you're not so important as would induce the Government of Canada, Judge Goetz and the court reporter to conspire to deprive you of your constitutional rights.

[36]      MR. ZUCAWICH: I requested to examine the net worth statement prepared by Sandra Campbell. I requested a subpoena for Sandra Campbell so I could cross-examine her, and the Judge refused. Now under the rules of the Court, am I allowed to cross-examine Sandra Campbell or not?

[37]      THE COURT: The Court is not here to give you legal advice, Mr. Zucawich.

[38]      MR. ZUCAWICH: Right. That's why I felt this case should proceed. It has merit. It's been stressful on me.

[39]      THE COURT: With great respect to you, of course it's been stressful. Everyone who is involved in litigation is under stress; there's no doubt about that. And I take no joy in the fact that you are suffering distress more than most people seem to. But what really seems to be the case is that there is no case. It's not a case which needs to go on. It seems to be a case which needs to be concluded. I don't see any merit in it so far, in any of it. Have you anything else you want to tell me, any further submissions?

[40]      MR. ZUCAWICH: Well, the documentation, the net worth statement that Revenue Canada used is not accurate. There is no documents. They say they did them from my documents. There never was any documents to support their evidence. That's why I requested to cross-examine Sandra Campbell and that's why the Crown refused, or that's why Mr. Shiply agreed to use my net worth statement.

[41]      THE COURT: Mr. Shiply being? Who is Mr. Shiply? He's not that important that I know him.

[42]      MR. ZUCAWICH: He was the legal counsel at that time for the Crown.

[43]      THE COURT: Anything else?

[44]      MR. ZUCAWICH: No, Your Honour.

[45]      THE COURT: Well, indeed, it's not for me to go behind the judgment of Judge Goetz. You filed a statement of claim in this Court on November --

[46]      MR. ZUCAWICH: If we were permitted to continue, we would amend the statement of claim to dismiss all reference to Judge Goetz.

[47]      THE COURT: I see. Any reply, Mr. Shore? Any response?

[48]      MR. SHORE: No, My Lord.

[49]      THE COURT: This Court is prepared to pronounce judgment, or an order at least in relation to Her Majesty the Queen's notice for an order dismissing the appellant's action T-2768-91 with costs. * * * The statement of claim in this action was filed in the Federal Court in Winnipeg on November 1st, 1991. The statement of defence was filed -- or at least it is dated, if not filed, on the 5th of December 1991. There was no reply or any other pleading in relation to the statement of defence. The Minister filed an affidavit of documents so that, (before one continues with the narrative, the matter has been at issue by counsel's calculation, taking into account the short vacation of the Court, which is accorded to the opposite party, time does not count against the opposite party during Court vacation), the matter has been at issue since January 20th, 1982. That is six years ago. During that time the Minister has filed an affidavit as to documents to disclose to Mr. Zucawich all of the documents upon which the Minister relies for sustaining the case for arrears of income tax, and that affidavit as to documents was filed on February 23rd, 1994, more than four years ago. That affidavit as to documents made by Mr. Floyd Rayner discloses some 217 documents which the Minister invited Mr. Zucawich at his leisure to come and inspect at any time during business hours over this course of time. The record discloses through the affidavit of Robert Gosman that the Minister has been attempting over the years to encourage, to induce, to cajole Mr. Zucawich, to file his affidavit as to documents, but Mr. Zucawich has not filed any affidavit as to documents. So that, in effect, nothing has been received or done in the action by Gerald Zucawich since January 20th, 1992. There was some correspondence from a lawyer, Charles L Chappell, of the Winnipeg firm of Aikins MacAulay indicating that he was going to review the file on behalf of Mr. Zucawich. Mr. Chappell later informed the Minister's counsel that he was no longer acting, by letter of September 22nd, 1995, exhibit "J" to Mr. Robert Gosman's affidavit sworn April 3rd, 1998 in support of this motion to strike out the statement of claim and dismiss the action. The last exhibit in Mr. Gosman's affidavit is exhibit "L". It is a memo to file, a telephone conversation from Gerald Zucawich to the Department of Justice speaking with a solicitor in the Department of Justice about this memo on the file, "telephone call from G. Zucawich to Pam Malone". Is Ms. Malone a lawyer?

[50]      MR. SHORE: Ms. Malone is a secretary in our office and when she received the call, I was standing right beside her and she handed it to me.

[51]      THE COURT: Thank you. So this is a memo then from you, Mr. Shore.

[52]      MR. SHORE: That's correct.

[53]      THE COURT: There are items on that memo of September 29th, 1997.

"I took the call. Mr. Zucawich said he wasn't proceeding with case because he couldn't appeal a "criminal act". I inquired about his address so that I may serve the letter on him, he told me that I could file it under "file 19". Also, Mr. Zucawich said that the Federal Court, "who I worked for", would not accept his documents." We have been over that this morning at this hearing. "He indicated that we had committed a crime because we had not listed all documents and that he couldn't appeal this. Talked about the Goetz crime" -- one might presume that is Judge Goetz's crime -- "cover up by Kim Campbell." The appellant wanted the proceedings stayed. I asked why and he indicated that a public inquiry was necessary. The general tone of the conversation was very angry, with yelling and some profane language." [Mr. Zucawich obviously wasn't feeling faint on that occasion.] "I ended the call when he refused to provide me with his address because he said he wasn't proceeding with the case because a crime had been committed. Mr. Zucawich was belligerent towards me, indicated that I worked for the Government of Canada and therefore the Federal Court and that "we" had prevented him from filing his documents." He was asked during this hearing about "we" and he says he means himself.

[54]      And the final paragraph is:

"I indicated that I would be writing down this conversation, and in the future, I would make a motion to dismiss his claim."

And that is exhibit "L" to the affidavit of Robert Gosman.

[55]      Among the jurisprudence cited on behalf of the Minister were the following cases: Nichols v. Canada et al.. The true citation is William Nichols v. The Queen et al., (1990), 36 F.T.R. 77, a decision of The Honourable Mr. Justice Dubé on June 25th, 1990; Waterside Cargo Co-operative v. National Harbours Board, (1986) 3 F.T.R. 189, a decision of this Judge; Androwich v. M.N.R., (1989) 31 F.T.R. 173, a decision of Mr. Justice MacKay; Ahmad v. The Queen, [1995] 1 C.T.C. 58, 95 D.T.C. 5123, 87 F.T.R. 193, a decision of Prothonotary Hargrave of this Court dated November 22nd, 1994, and Universal Graphics Ltd. v. The Queen, a decision of Prothonotary Hargrave in 1997, indeed August 18th, 1997, and there is no reliable citation for that. The Court File No. is T-2455-91. The plaintiff, Mr. Zucawich, mentioned the following jurisprudence: Minister of National Revenue v. City of Kitchener, November 9th, 1983, that is the only citation, and Minister of National Revenue v., J. Robitaille, December 15th, 1983, and that is the only citation. Another case was mentioned, Attorney-General of Nova Scotia v. Attorney-General of Canada, and the date is 1953, it may have been on May 26th. The cases there appear to be quite unrelated to the case of Mr. Zucawich. It would seem, from what this court heard, to be questions of the division of constitutional powers and jurisdiction rather than the assessment and collection of income tax. Mr. Zucawich indicated that it was ultra vires of the Parliament of Canada and the Government of Canada to get a notice to file a tax return and to garnish monies in the possession of or owing to the taxpayer. This Court is absolutely certain that Mr. Zucawich's situation is not reflected in any of the jurisprudence which he cited. Indeed, it is quite within the powers of the Department of National Revenue or of the Government of Canada to give notice to file an income tax return, and, where taxes are owing, to garnish monies owing to the taxpayer or held in the taxpayer's bank account if the taxpayer has bank accounts. The Minister says that not only has there been a long time since the matter was at issue, but that the Minister is potentially prejudiced in that the Minister's principal witness has retired, so that the plaintiff has been effective in avoiding service and dragging his feet and failing to file affidavits as to documents, and indeed picking up the carriage of his own action against the Minister, thereby prejudicing the Minister. The Minister's counsel also cites the Universal Graphics case, a 1997 decision of Prothonotary Hargrave, who says that there was in that case "enough delay to raise a presumption of prejudice". He found that there was no interest by the plaintiff in the action and no excuse for not prosecuting his action. And once again, one may be referred to exhibit "L" to Mr. Gosman's affidavit. Mr. Zucawich first led with a red herring. He said his home was burglarized. When the Court asked him if he thought that the Department of National Revenue was behind that, he said he didn't know if the Minister of National Revenue or the Department of National Revenue was behind it. It was at that point that Mr. Zucawich seemed to be about to faint and so there was a recess. When the court resumed, Mr. Zucawich said there are some precedents in cases Mr. Chappell found, (he referred to him first as Chapman, but remembered that his name was Chappell), and that he had been contacted within the last few months, and because "other information came to us", and here we have this first person plural. When the Court asked Mr. Zucawich who are the others, he said he meant himself, "me". And then he gave the cases of the City of Kitchener and Robitaille. He said that these would be most of the information he would need to proceed with his case. They deal with ultra vires acts of the government. The Court has already dealt with that question of ultra vires acts. There was a discussion, and it was not sarcastic or pejorative in the least, but since Mr. Zucawich claims that there is a conspiracy to deprive him of his constitutional rights, he was asked if he is so important that the Government of Canada would risk its reputation and risk public odium in attempting to deprive him, in particular, of his constitutional rights. And he indicated that he is not so important as to be a special victim of the Government of Canada. And indeed the Court, from its own experience, knows that there are many people in this country who default on their income tax and their bank accounts are garnished, and people who owe them mortgage monies are garnished, and the garnishing orders go forth and there is never any question of being ultra vires. Indeed, garnishing orders are not ultra vires; they are quite intra vires as collection instruments available to the Government of Canada to collect tax. The Constitution Act, 1867 accords to the Parliament of Canada taxation powers by any mode or method of taxation, so that the Government of Canada may make direct taxes and indirect taxes and income tax is a direct tax, and it may collect that. Every free and democratic country collects tax from the people and every free and democratic country in the world reserves to the government of the country the right to collect tax. So that this, being a run-of-the-mill type of case in the Court's experience, there would appear to be nothing but paranoia in Mr. Zucawich's assertions that he is being especially singled out for violation of his constitutional rights by the Department of National Revenue. And finally, Mr. Zucawich pleaded that he needed time, the six years apparently not being enough, to learn about income tax, various Acts and the constitution, and if he were permitted to continue, he would amend his statement of claim to remove references to Judge Goetz, and I should imagine as well to the court reporter who took the transcript of the proceedings before Judge Goetz. He begged the Court to show mercy and to "let us proceed", (again the plural), "us proceed", with this Court case. The Court would not for the world be facetious, but it seems that the greatest mercy which the Court could do would be, as the Minister asks, to dismiss the action, to strike out the statement of claim and dismiss the action for want of prosecution. It has dragged on too long. One cannot give Mr. Zucawich a new course in taxation law at each turn of the action. When the Minister says "file your affidavit of documents please" and asks many times: when the Minister says "We are now prejudiced because our principal witness has retired from the service and may not be a cooperative witness; goodness knows where he is, and what his state of health may be," that certainly is potential prejudice. So that the biggest mercy the Court could show to Mr. Zucawich would be to dismiss for want of prosecution. The Minister has asked for costs. And surely the Minister would be entitled to a judgment for disbursements which will have to be detailed and passed on by an assessment officer to avoid the taxation of a bill of costs. The Court will grant costs to the Minister in the among of $450.00, which is not breathtakingly expensive as anyone will tell Mr. Zucawich; it is rather a bargain.

[56]      Are there any questions? If there are no questions, Court will rise.