Roitman v. Canada, 2005 FC 1385

Date: 20051014

Docket: T-1040-05

Citation: 2005 FC 1385

                                                     PROPOSED CLASS ACTION

BETWEEN:

                                                             JULIUS ROITMAN

                                                                                                                                               Plaintiff

                                                                         - and -

                                                    HER MAJESTY THE QUEEN

                                                                                                                                           Defendant

                                                        REASONS FOR ORDER

GIBSON J.

Introduction

a) The motion before the Court

[1]                By motion filed the 26^th of August 2005, the Defendant seeks:

a)          an Order pursuant to Rule 221 of the Federal Court Rules, 1998^[1] (the "Rules") striking out the Statement of Claim of the Plaintiff filed on the 15^th of June 2005;

b)          in the alternative, an Order of directions for a hearing of a determination of a question of law prior to trial pursuant to Rule 220;

c)          an Order for costs of the motion; and

d)          further and additional relief as the Court may deem appropriate.

[2]                The Defendants' motion was heard on the 23^rd of September 2005, at Vancouver. At the close of the hearing, the Court advised counsel that the Plaintiff's Statement of Claim would not be struck out but that the alternative relief sought, an Order of directions for a hearing for a determination of a question of law, would be granted. The Court further advised counsel that costs of the motion would be in the cause, and that reasons would follow. These are those reasons.

b) The Background

[3]                The background to the action, and thus the Defendant's motion, is succinctly set out in the Defendant's Memorandum of Fact and Law and is agreed to on behalf of the Plaintiff. The relevant paragraphs from the Defendant's Memorandum of Fact and Law follow:

4.              The Minister reassessed:

a)              the Plaintiff's company Gold Seal Motors Ltd. ("Gold Seal") in respect of its 2001 and 2002 taxation years by notices dated February 13, 2004, disallowing certain claims for expenses.

b)              Gold Seal in respect of its 2000 taxation year to disallow a loss carry-back from the 2001 taxation year.

c)              the Plaintiff in respect of his 2000, 2001 and 2002 taxation years by notices dated February 20, 2004, by including certain amounts that were disallowed as expenses of Gold Seal in his income as shareholder benefits and indirect benefits, pursuant to ss. 15(1) and 56(2) of the Income Tax Act (the "Act").

5.              The Plaintiff and Gold Seal objected to the reassessments of their 2000, 2001 and 2002 taxation years and provided the Minister with submissions in support of their position.

                                                                       ...

6.              Upon considering the Plaintiff's and Gold Seal's representations, the Minister accepted the submissions in part and responded with a settlement proposal.

                                                                       ...

7.              The Plaintiff and Gold Seal made further representations to the Minister. In these representations, the Plaintiff proposed that the benefit assessed to the Plaintiff should be considered to be a shareholder debt under s. 15(2) of the Act rather than a benefit under s. 15(1). He also submitted that the Plaintiff's shareholder credit balance in Gold Seal should be taken into account and the personal withdrawals made by the Plaintiff from Gold Seal should be considered to be repayment of Gold Seal's debt to the Plaintiff.

                                                                       ...

8.              The Minister refused to make any further concessions for settlement and advised the Plaintiff that, if he did not agree with the settlement proposal, the Minister would confirm the assessment and the Plaintiff could then pursue the issue in Tax Court.

                                                                       ...

9.              At all material times, the Plaintiff and Gold Seal were represented in the settlement negotiations by a Chartered Accountant, Mr. Colin Yip of Colin Yip & Associates Ltd.

10.            Both the Plaintiff and Gold Seal chose to accept the Minister's settlement proposal and signed a settlement agreement whereby the Minister would reassess the Plaintiff and Gold Seal in accordance with the Minister's proposed settlement. The reassessments resulting from the settlement agreement allowed the majority of expenses previously disallowed to Gold Seal, and correspondingly reduced the amount of the income attributed to the Plaintiff under ss. 15(1) and 56(2) of the Act.

                                                                       ...

11.            In signing the agreement, the Plaintiff acknowledged that he was familiar with ss. 165(1.2) and 169(2.2) of the Act and understood that, if he accepted the proposal, he would be precluded from filing an objection or an appeal under the Act.

12.            The Plaintiff was reassessed in accordance with the terms of the settlement agreement on January 24, 2005.

                                                                       ...

13.            On June 15, 2005 the Plaintiff filed the present Statement of Claim alleging that in reassessing the Plaintiff, the Defendant engaged in "deliberate conduct...to deny... the Plaintiff the benefit of the law." The Plaintiff further alleged that this constituted a "breach of statutory authority, misfeasance in public office, negligent statutory administration, abuse of power and a disregard of fundamental justice which resulted in loss and damages to the Plaintiff and unjust enrichment to the Defendant.

                                                                       ...

[cross-references to an affidavit and appended exhibits filed on behalf of the Defendant omitted]

c) The Statement of Claim

[4]                The Plaintiff's Statement of Claim identifies the claim as a Proposed Class Action. The Plaintiff seeks, on his own behalf and on behalf of all class members:

(a)         damages for misfeasance in public office;

(b)         special damages, including costs of defending the proposed income tax reassessments and in prosecuting the civil income tax appeal;

(c)         punitive, exemplary and aggravated damages;

(d)         interest pursuant to the Federal Court Act;

(e)         costs of the action on a solicitor and client basis; and

(f)          such further relief as the Court may deem just.

[5]                The Plaintiff, in his Statement of Claim, describes the background to his claim in the following terms:

18.            The Tax Court of Canada rendered its decision in Franklin v. The Queen, 2000 DTC 2455, on September 13, 2000. Franklin is an income tax appeal in which the Appellant, a shareholder of a company, for the purpose of determining the amount of a subsection 15(1) benefit, if any, sought to set off as against the amount received by him from the company the amount of the credit balance in his shareholder's loan account with the company, that is, the position of the Appellant was that the company owed him more than the taxpayer had received and, therefore, there was no taxable benefit to the Appellant. The Tax Court of Canada allowed the taxpayer's appeal finding that although the Appellant "deliberately failed to report the sale and the payments in dispute", there was no taxable benefit to him because of the offsetting credit balance in the shareholder's loan account with the company.

19.            The Crown appealed the decision of the Tax Court of Canada in Franklin to the Federal Court of Appeal which gave Reasons for Judgment (2002 DTC 6803) on January 28, 2002. The Federal Court of Appeal dismissed the appeal and in doing so adopted the Reasons for Judgment of the Tax Court of Canada, namely, that even if a series of bookkeeping errors in a company's statements are caused "either on purpose or inadvertently" there nevertheless will be no subsection 15(1) benefit to the shareholder if the transaction could have been properly recorded and charged against the credit balance in the shareholder's loan account with the company.

20.            Following upon the decision of the Federal Court of Appeal in Franklin the Head Office of the Appeals Division of the CCRA [the Canada Customs and Revenue Agency] in Ottawa issued a Decision Memorandum which reads as follows:

The CCRA has not sought leave to appeal the Franklin decision of the Federal Court of Appeal. The issue is whether a benefit was conferred on the shareholder where corporate funds were received by the shareholder and were not recorded in its loan account. In a split decision the Federal Court of Appeal held that the determination of whether a benefit has been conferred is a question of fact. The Federal Court of Appeal then dismissed the CCRA's appeal on the basis that it could not find any palpable or overriding error in the Tax Court Judge's assessment of the facts that would justify interfering with the decision. However, the Federal Court of Appeal cautioned that the decision was not condoning taxpayers negligently keeping inaccurate records and deliberately not disclosing transactions. This decision reaffirms the previous decisions in Chopp and Robinson and extends them to situations where the taxpayer knowingly fails to reflect transactions in the financial statements of a corporation. This case is on the important issues list. Any similar objection or appeals can be resolved on the basis of their own particular facts keeping in mind the Federal Court of Appeal's words of caution.

21.            The Federal Court of Appeal decision in Franklin is described in a response to Question 2, "Shareholder Benefits", in the Canadian Bar Association/CCRA Joint Discussion Group Meeting, Pacific Region, June 14, 2004. The CCRA response was that no principle of law was established by this decision, noting that the Federal Court of Appeal said that its judgment was "not to be interpreted as condoning taxpayers negligently keeping inaccurate records or deliberately not disclosing transactions" and:

Consequently, the official position of the Appeals Branch is that any similar objections or appeals should be resolved on the basis of their own particular facts, keeping in mind the Federal Court of Appeal's words of caution.

We are currently reviewing the Franklin decision and will be providing guidelines to the field. In the interim, any similar cases should be resolved on the basis of their own particular facts....

22.            The Plaintiff says that the decision of the Tax Court of Canada in Franklin, as confirmed by the Federal Court of Appeal is authority for the simple proposition that, whether a benefit is obtained by a shareholder from a company either "on purpose or inadvertently", the amount or value of that benefit, for the purposes of subsection 15(1) of the Act, must be reduced by a credit balance in the shareholders's loan account. This is a simple and clear proposition of law established in Franklin. For the Defendant to openly disregard this principle of law and to take the position that similar cases should be "resolved on the basis of their own particular facts" amounts to deliberate and unlawful conduct in its position as a Public Officer.

23.            The Plaintiff says that the Defendant's conduct as described herein is just one example of many, of its practice of "making its own rules" by openly and brazenly ignoring principles of law that do not suit its own purposes.

24.            The Plaintiff says that the only distinction from one subsection 15(1) case to another is with respect to arithmetic alone. That is to say, the amount of the benefit received by the shareholder is to be determined relative to the amount of the credit balance of his/her shareholder's loan account. Other than a consideration of those numbers there is no rationale for resolving cases "on the basis of their own particular facts" since that would be contrary to the law as decided in Franklin.

25.            The Plaintiff says that the actions of the CCRA through its officers at Head Office Appeals Division and Head Office Audit Division and through its officers and employees throughout the various TSOs amounts to a deliberate misapplication of the law as established in Franklin and in doing so the CCRA has engaged in deliberate and unlawful conduct in its capacity as a Public Officer. Further, it is the Plaintiff's position that the CCRA was aware that its conduct was unlawful and that it was likely to harm the Plaintiff.

26.            The Plaintiff says that the aforesaid deliberate conduct by the CCRA to deny taxpayers, and the Plaintiff in particular, the benefit of the law, constitutes a breach of statutory authority, misfeasance in public office, negligent statutory administration, abuse of power and a disregard of fundamental justice which resulted in loss and damage to the Plaintiff and unjust enrichment to the Defendant.

[The Court has added emphasis within the quotation in paragraph 20; the emphasis in the quotation in paragraph 21 and in paragraphs 22 and 24 is in the original.]

c)          The Statement of Defence

[6]                On the 2^nd of August, the Defendant filed her Statement of Defence.

[7]                In her Memorandum of Fact and Law filed on the Motion at issue, counsel for the Defendant describes the basis for the Defendant's motion, as reflected in the Statement of Defence itself, in the following terms:

1.              The Defendant seeks to strike out the Plaintiff's action because it challenges the legality of assessments of income tax made by the Minister of National Revenue (the "Minister"). In seeking damages for misfeasance of public office in respect of assessments that the Plaintiff claims are unlawful, the Plaintiff necessarily asks this Court to determine the validity of the assessments. This is a matter exclusively within the jurisdiction of the Tax Court of Canada. This action therefore has no prospect of success and is thus frivolous and vexatious.

2.              The action is furthermore an abuse of process because its purpose is to circumvent the statutory appeal process for tax disputes. The assessments the Plaintiff now attacks were issued as a result of a negotiated settlement between the Plaintiff and the Minister, in respect of which the Plaintiff waived his rights of appeal. The action should be therefore struck as an abuse of process.

3.              Alternatively, the Defendant requests a hearing for a preliminary determination on the question of law of the application of the Federal Court of Appeal decision in the Franklin case. This Plaintiff has based his claim on an interpretation of that decision which the Defendant says is wrong. The resolution of this question of law before a trial would dispose of an issue in dispute, and possibly dispose of the claim entirely.

The Legislative Framework and the Rules at Issue

[8]              Subsection 17(1) of the Federal Courts Act^[2] confers broad concurrent jurisdiction on this court "...in all cases in which relief is claimed against the Crown." Paragraph 17(2)(d) of that Act makes specific reference to such jurisdiction extending to cases in which the claim is for damages under the Crown Liability and Proceedings Act^[3].

[9]                Subsection 12(1) of the Tax Court of Canada Act^[4] confers on that court exclusive original jurisdiction to hear and determine, among other things, appeals to that court on matters arising under the Income Tax Act^[5].

[10]            Subsection 169(1) of the Income Tax Act provides for an appeal to the Tax Court of Canada from an assessment in respect of which a taxpayer has served a notice of objection. Subsection 171(1) of that Act provides for the reliefs that the Tax Court of Canada may provide on any such appeal. Those reliefs do not extend to an award of damages. Finally, subsection 152(8) of the Income Tax Act provides that an assessment shall, subject to being varied or vacated on an objection or appeal, and subject to a reassessment, be deemed to be valid and binding notwithstanding any error, defect, or omission in the assessment or in any proceeding under the Income Tax Act relating to the assessment.

[11]            All of the foregoing statutory provisions are set out in a Schedule to these reasons.

[12]            Rule 221 provides for the striking out of pleadings. That rule reads as follows:

[13]            Finally, Rule 220(1)(a) provides for preliminary determination of questions of law that may be relevant to an action, and Rules 220(2) and (3) provide for the contents of an order for determination of a preliminary question of law and that any such determination is final and conclusive for the purposes of the action. Rules 220(1)(a) and (2) and (3) read as follows:

Analysis

a) Striking the Statement of Claim

i) General Principles

[14]            In Hunt v. Carey Canada Inc.^[6], the Supreme Court of Canada established that the test in Canada to strike a pleadings is whether it is plain and obvious that the claim discloses no reasonable cause of action or defence. In Main Rehabilitation Co. Ltd. v. Her Majesty the Queen^[7], Justice Rothstein, for the Court, wrote at paragraph [3]:

The test to be applied for striking out pleadings is whether it is plain and obvious that Main's Notice of Appeal to the Tax Court discloses no reasonable claim. Only if its appeal is certain to fail should the relevant portions of the Notice of Appeal be struck out. As stated, the facts alleged in the Notice of Appeal are assumed to be true. ... [citation to Hunt v. Carey omitted].

In Swift v. Her Majesty the Queen^[8], Justice Sexton, for the Court, in dealing with an appeal by a self-represented taxpayer, wrote at paragraph [9]:

Although the Statement of Claim is a rather rambling discourse related to the actions taken by CCRA, and is lacking in detail as to the allegations of fraud it is not totally clear that the Statement of Claim is frivolous and vexatious. It is not certain that the action cannot possibly succeed.

In the result, the Court of Appeal held that, on the facts of that matter, the Statement of Claim should not have been struck out.

[15]            It was not in dispute before the Court that where the pleading of a cause of action is beyond this Court's jurisdiction, that alone is an abuse of process and justifies the striking of the claim^[9].

[16]            Finally, with respect to striking of pleadings, as a matter of general principle, a party cannot move to strike out a pleading once that party has itself filed a responding pleading as is the case in this matter. However, that general principle does not apply where the responding pleading challenges the impugned pleading on the same grounds as those underlying the motion to strike^[10].

ii) Application of the Foregoing Principles in this Matter

[17]            Counsel for the Defendant urges that the Statement of Claim herein should be struck because the Plaintiff's claim is, in reality, an attack on an assessment and the sole jurisdiction to adjudicate with respect to any such attack lies with the Tax Court of Canada. Counsel urges that this Court has found that the statutory scheme for appeals from assessments of income tax is a complete code^[11]. Counsel urges that characterizing the cause of action as an attack on the Minister's conduct in raising the assessment does not take the subject matter of the action outside the exclusive jurisdiction of the Tax Court of Canada, as a challenge to the assessment is inherent in the relief sought^[12].

[18]            By contrast, counsel for the Plaintiff urges that the Plaintiff's claim for damages, as a proposed class action, is well founded. He urges that it is based on bad faith administration and alleges misfeasance in public office and that it neither directly or indirectly challenges the assessment that underlies the conduct in issue. In the result, counsel urges, the Plaintiff's claim falls within the concurrent jurisdiction of this Court and is not within the jurisdiction of the Tax Court of Canada. In the result, it is urged, there is no basis on which to strike the Statement of Claim either as disclosing no reasonable cause of action or as an abuse of process of this Court.

[19]            In Swift v. Her Majesty the Queen^[13], Justice Sexton wrote for the Federal Court of Appeal:

The claim being advanced by the Appellant, although it labels the assessments as fraudulent, does not seek to set aside the assessments. In essence, it is a claim for damages for fraudulent actions on the part of officials of the CCRA during the assessment process. This claim for damages has not been previously decided by the Tax Court of Canada and is not within the jurisdiction of the Tax Court of Canada....

I am satisfied that the same could be said here. In the result, as earlier noted, I advised counsel at the close of the hearing of this motion that the Defendant's claimed relief in the nature of striking the Statement of Claim will be denied.

b) Preliminary Determination of a Question of Law

[20]            The Defendant, in the alternative, seeks determination of the following question of law:

Does the decision by the Federal Court of Appeal in Franklin v. MNR require the Minister to apply a set-off between a s. 15(1) benefit and any shareholder loan as recorded by the taxpayer, regardless of any surrounding circumstances, and preclude the Minister from considering individual s. 15(1) cases on their own particular facts in any case and in any circumstances?

Counsel notes that interpretation of the decision in Franklin is referred to extensively in paragraphs 18 through 25 of the Plaintiff's Statement of Claim, that the question proposed is a pure question of law and is not academic and that it would resolve at least a substantial portion of the dispute between the parties and possibly the entire action.

[21]            Counsel for the Plaintiff notes in the Plaintiff's Memorandum of Fact and Law:

The Plaintiff does not oppose the Defendant's alternative motion regarding the determination of a question of law.

At hearing, counsel for the Plaintiff went further and essentially endorsed the terminology of the proposed question. That being said, when advised at the close of hearing of what the outcome on the motion would be, counsel for the Defendant suggested that there might, in fact, be a second question of law which the Defendant would wish to propose. The Court urged counsel to consult further and they undertook to do so and to advise the Court of the outcome. Counsel are urged to further consult with regard to the matters that might be dealt with under Rule 220(2) in respect of an order for preliminary determination of a question of law.

[22]            Counsel are invited, within fifteen (15) days of the date of release of these reasons, to advise the Court of the outcome of their consultations. Thereafter, an order giving effect to these reasons will issue.

Costs

[23]            Costs of this motion will be costs in the cause.

"Frederick E. Gibson"

                                                                                                   Judge                       

Ottawa, Ontario

October 14, 2005

                                            SCHEDULE

                                       Federal Courts Act

                                  Tax Court of Canada Act

                                         Income Tax Act

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-1040-05

STYLE OF CAUSE: JULIUS ROITMAN

- and -

HER MAJESTY THE QUEEN

PLACE OF HEARING:                                 Vancouver, BC

DATE OF HEARING:                                   September 23, 2005

REASONS FOR ORDER:                            GIBSON J.

DATED:                     October 14, 2005

APPEARANCES:

Mr. Craig C. Sturrock                                       FOR PLAINTIFF

Mr. James M. Poyner

Mr. David Jacyk                                                FOR DEFENDANT

Ms. Lisa M. Macdonell

SOLICITORS OF RECORD:

Thorsteinssons LLP                                           FOR PLAINTIFF

Vancouver, BC

Poyner Baxter LLP

North Vancouver, BC

Mr. John H. Sims, Q.C.                                                 FOR DEFENDANT

Deputy Attorney General of Canada