Date: 20030502
Docket: T-9509-82
T-2556-94
Neutral citation: 2003 FCT 550
T-9509-82
BETWEEN:
THOMAS JOHN O'NEIL
Plaintiff
and
HER MAJESTY THE QUEEN, IN THE RIGHT OF CANADA
Represented by THE MINISTER OF NATIONAL REVENUE
Defendant
T-2556-94
BETWEEN:
THOMAS JOHN O'NEIL
Plaintiff
and
HER MAJESTY THE QUEEN,
Represented by THE MINISTER OF NATIONAL REVENUE
Defendant
REASONS FOR ORDER
HARGRAVE P.
[1] The Plaintiff, Dr O'Neil, seeks to revive these two actions which are based on business transactions as long ago as 1965. These transactions went wrong and resulted in tax consequences for the Plaintiff for the years 1973 through 1976 and 1980.
BACKGROUND
[2] Action T-9509-82 was struck out for want of prosecution by Order dated 3 August 1995. The Plaintiff neither opposed the motion nor appealed in result. The second action, T-2556-94, was struck out, after hearing both sides, as an abuse of process and for delay. The reasons and the order were issued by the Registry on 5 May 2000. There was no appeal. I will also refer to these two actions as the 1982 action and the 1994 action and to the Orders terminating the actions as the 1995 and 2000 Orders.
[3] The Plaintiff seeks, by the present motion of 2 April 2003, first, to extend time to appeal the Orders of 3 August 1995 and 5 May 2000; second, leave to file an appeal of both Orders and leave to issue new statements of claim in both matters; and third, an order for "detention" of his property, which from the context of the material is an order for preservation of property under rule 377.
[4] As I say, there were there no motions to appeal the Orders striking out the actions. I would also observe, as to the 1982 action, that when a party does not oppose a motion, of which he or she has proper notice and an ability to attend, an appeal is not to be expected.
[5] At the time of the 1995 Order, rule 336(5) imposed the time limit of 14 days within which to appeal an order of a prothonotary. Current rule 51, which applies to the 2000 Order, allows a time limit of 10 days for such an appeal. Of course, these time limits are subject to any grant of extension of time.
CONSIDERATION
[6] When Dr O'Neil's present motion first came on for hearing it turned out that, through a problem with a courier service, Dr O'Neil had not received the responding motion record filed by the Crown. Thus I adjourned the hearing for two weeks, after having pointed out to Dr O'Neil that his first hurdle was that of an extension of time and that he should pay careful attention to the case relied upon by the Crown for a time extension, Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 (F.C.A.) at 400. The test set out there by the Court of Appeal, for a time extension, requires the applicant to show:
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1. a continuing intention to pursue his or her application;
2. that the application has some merit;
3. that no prejudice to the respondent arises from the delay; and
4. that a reasonable explanation for the delay exists.
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Continuing Intention
[7] Dealing first with a continuing intention to appeal, Dr O'Neil spoke about various past fraudulent activity on the part of the Crown, his view that he had been defrauded by business associations and by Revenue Canada, that the British Columbia Supreme Court had not properly heard him in 1988 and that it was only now that he had proof that he had been defrauded.
[8] I have gone through Dr O'Neil's material, some of it dating back to 1964. Even the most recent material pre-dates the 2000 Order, striking out the 1994 action. Thus there are no recent documents bearing on the present motion. All of the material seems to be that which Dr O'Neil presented to the Court either before the 1995 Order or before the 2000 Order.
[9] Dr O'Neil says, in his written representations, that the delay was caused by the fact that he considered the Orders dismissing the actions to be final, that Revenue Canada made no demand on him until December 2002 and that new evidence of fraud, by his solicitors and Revenue Canada "are now clear but were not suspected until very recently. Some aspects were known, but not the clear evidence required to claim fraud." (Written Representations filed 2 April 2003).
[10] While Dr O'Neil may not have experience with appeals in this Court, he is certainly aware of that procedure generally and here I have in mind his appeals to the Federal Court from the Tax Court and his appeals to the BC Court of Appeal. His material shows no new evidence as such, but only the assertion, in argument, that what happened is now clear to him. It is insufficient for the Plaintiff to say, after many years, that he finally realizes the mechanics by which he was defrauded. It also seems that the evidence was either always in hand, or available: as I say, there appears to be no new material among the documents which Dr O'Neil presents on the motion. Rather, he has, to put the best light on his intention to pursue the matter, either spent some 30 years, or at least the past several years, putting a new slant on the material and has now, in the face of execution proceeding, decided to try once again to challenge his tax assessments of two and three decades ago. Litigation must come to an end at some point: second thoughts and re-assessments of existing evidence are not a basis upon which to resurrect properly defunct litigation. I do not accept any of Dr O'Neil's evidence or submissions as indicative of an intent that has continued, uninterrupted, during the relevant time period and specifically Dr O'Neil has not demonstrated that he ever intended to appeal the 1995 and 2000 Orders at any time until the present.
Merit of the Application
[11] I now turn to the issue of the merit of the application. Dr O'Neil spent time on submissions which went to the merit of his two challenges. At issue is not the underlying merit of the challenge of the tax assessments, although I would note in passing the view of the Tax Review Board in O'Neil Enterprises Limited and T.J. O'Neil, M.D. v. The Minister of National Revenue (1982), 82 D.T.C. 1732 which involved assessments for a number of years. Mr Bonar, in writing that decision, observed that Dr O'Neil "... appears to be astute in matters of business and investment ...", but that he "demonstrated an amazing inability to come to grips in any cogent way with the many facets of the assessments which he asserted were wrong." (page 1733). Rather, it is for Dr O'Neil to demonstrate why the actions ought not to have been dismissed for want of prosecution, or as an abuse of the process of the Court. I am not able, either from Dr O'Neil's presentation, or from his material, to find an arguable case which in any way assists Dr O'Neil.
Prejudice to the Defendant
[12] Dr O'Neil approaches the issue of prejudice not so much by denying that the Crown had been prejudiced, but by pointing out that he himself has suffered far greater prejudice through fraud practised on him by his business associates and by the Crown. I am prepared to accept that were the Crown now forced to look back some 35 or 40 years to when Dr O'Neil's business transactions took place, or even 30 years to the first taxation year in question, would be prejudiced. As I say, this is not denied by Dr O'Neil. That he had suffered prejudice as well is not part of the Hennelly test, for prejudices do not necessarily offset one another.
Explanation for the Delay
[13] Finally, the only explanation for the delay, as I understand it, is that after all of these years, perhaps 30 or 40 years, Dr O'Neil says that he has finally realised how he was defrauded. This realisation has apparently occurred during the past several years since his actions were struck out. In some instances a court might accept this sort of assertion as going toward an explanation for the delay, but I am also aware that Dr O'Neil gives as reasons for the delay a view that once the actions were dismissed the result was final and that there was no pressing need to get on with his own legal affairs until Revenue Canada, fairly recently, commenced some form of execution proceedings.
Conclusion as to the Time Extension
[14] I have weighed all that Dr O'Neil sets out and has said, as I must, by Grewel v. Canada (MEI), [1985] 2 F.C. 263 (F.C.A.), to ensure that justice is done between the parties. There is little to weigh in favour of Dr O'Neil. To allow the extension would vest major injustice upon the Crown. There will be no time extension in which to appeal the Orders of 3 August 1995 and 5 May 2000.
Leave to File a New Statement of Claim
[15] Dr O'Neil is not entitled to have leave to file a new statement of claim to re-litigate the issues in the 1982 and the 1994 actions. Those actions were dismissed with dismissals being final and binding, unless successfully appealed.
Order Preserving Property
[16] Rule 377(1) provides that:
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On motion, the Court may make an order for the custody or preservation of property that is, or will be, the subject-matter of a proceeding or as to which a question may arise therein.
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La Cour peut, sur requête, rendre une ordonnance pour la garde ou la conservation de biens qui font ou feront l'objet d'une instance ou au sujet desquels une question peut y être soulevée.
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On a plain reading the rule requires that the property to preserve is or will be the subject matter of a proceeding or as to which a question may arise in that proceeding. In the present instance, as I understand it, the property against which the Crown is proceeding in a British Columbia court proceeding, is a residence. That residence has no direct connection with either the 1982 action or the 1994 action in the Federal Court. Rather the connection is to an assessment upheld by the Tax Court.
[17] Even leaving aside the plain wording of the rule, an order under rule 377, while not injunctive in nature, looks to the test for an interlocutory injunction, as set out, for example, in American Cyanamid Co. v. Ethico Ltd., [1975] A.C. 396 (H.L.) and RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311: see Perini America Inc. v. Alberto Consani North America Inc. (1992), 57 F.T.R. 139 (F.C.T.D.) at 143.
[18] The test in RJR-MacDonald is first, that the applicant must demonstrate a prima facie case, or at least a serious question to be tried; second, that the applicant must show that absent an injunction he or she will suffer irreparable harm either not susceptible to or difficult to compensation in damages; and third, that the balance of convenience lies with the applicant for the order. I do not see, in Dr O'Neil's material a case even approaching the relatively low standard of a prima facie case. The harm which Dr O'Neil may suffer is unfortunate, but not irreparable. The balance of convenience is with the Crown.
CONCLUSION
[19] The difficulties faced by Dr O'Neil are first that he is unable to come within the Hennelly case in order to obtain time extension within which to appeal the 1993 and 2000 Orders; second, that there is no evidence to suggest that there will be any Federal Court proceeding which will touch on the property in question; and third, Dr O'Neil has not, either in his material or in his presentation, met any of the requirements of the RJR-MacDonald test which might assist in a preservation order.
[20] The motion is denied with costs. Here the respondent submits that the motion itself is vexatious and amounts to an abuse of the process of the Court. In the result costs of the motion will be a lump sum of $1,200.00 based upon the high end of Column III of Tariff B and which includes an allowance for disbursements. However, Dr O'Neil may have the reasonable costs of his first attendance in Vancouver on 14 April 2003.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
2 May 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-9509-82
T-2556-94
STYLE OF CAUSE: Thomas John O'Neil v. Her Majesty the Queen In Right of Canada as represented by the Minister of National Revenue
Thomas John O'Neil v. Her Majesty the Queen
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: 14 & 28 April 2003
REASONS FOR ORDER OF: Hargrave P.
DATED: 2 May 2003
APPEARANCES:
Thomas John O'Neil PLAINTIFF
Michael Taylor FOR DEFENDANT
SOLICITORS ON THE RECORD:
Thomas John O'Neil PLAINTIFF on his own behalf
Kelowna, British Columbia
Morris A. Rosenberg FOR DEFENDANT
Deputy Attorney General of Canada
Department of Justice
Vancouver, British Columbia
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