Date: 20130325
Docket: T-208-13
Citation: 2013 FC 305
Ottawa, Ontario, March 25, 2013
PRESENT: The Honourable Mr. Justice
Zinn
BETWEEN:
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ALBERT ROSS DEEP, M.D., F.R.C.P. (C)
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Plaintiff
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and
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CANADA REVENUE AGENCY (FORMERLY CANADA CUSTOMS AND REVENUE AGENCY)
AND HER MAJESTY THE QUEEN
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Defendants
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REASONS FOR ORDER AND ORDER
[1]
The Defendants bring a motion in writing,
pursuant to Rule 369 of the Federal Courts Rules for:
(a)
An order directing that the within Statement of
Claim be struck out in its entirety without leave to amend and that the action
be dismissed accordingly;
(b)
In the alternative, should the Court refuse to
grant the primary relief sought, an order providing the Defendants 45 days to
serve and file a Statement of Defence;
(c)
Costs of this Motion; and
(d)
Such further and other relief as counsel may
request and this Honourable Court permit.
[2]
The Plaintiff’s claim against the Defendants is
set out in paragraph 1 of his Statement of Claim, as follows:
(1) The Plaintiff specifically claims in this action reversal,
nullification and lawful quashing of the Order of Justice C. Miller of the Tax
Court of Canada of June 5, 2006, Court File No. 2002-2009 (IT)G and the Order
of the Federal Court of Appeal of November 15, 2007, Court File No. A-284-06 on
the Grounds of FRAUD and SUBSEQUENT DISCOVERED EVIDENCE supportive of
ADMINISTRATIVE MISFEASANCE OF PUBLIC OFFICE and coordinated or complicit
intentional interference with economic relations, earnings, wealth, assets,
retirement savings and credit injury.
(2) The Plaintiff claims complete vacation of the reassessments of
the Minister with total vacation of all tax claims of the Canada Revenue Agency
(heretofore C.R.A.) and cancellation or lifting of any personal or property
liens and any claims for taxes alleged owing to C.R.A.
(3)
SPECIAL DAMAGES for unnecessary usurption of the
Plaintiff’s time, interference with enjoyment of life, legal costs both
personal and retained solicitors, transcript and court costs, preparation and
carriage of the Tax Court proceedings, Federal Court of appeal costs, loss of
business opportunity, impedance and obstruction of important concomitant
litigation interfering with professional livelihood, production of excess
borrowing costs due to injury to credit and an approximate amount of $8.0
MILLION DOLLARS.
(4)
GENERAL DAMAGES DUE TO MALICE AND LACK OF GOOD
FAITH, characterized by recklessness, carelessness, gross negligence, gross
fault, abuse of power and administrative misfeasance of $20 MILLION .
(5)
AGGRAVATED DAMAGES AND PUNITIVE DAMAGES in the
discretion of this Court, $50 MILLION suggested by the Plaintiff, to deter
arbitrary capricious state action targeted against Canadian citizens and
engineering of a confiscatory system tainted with tyranny, despotism and
dictatorship, foreign and unacceptable to Canadians, and alleged complicity in
libellous denunciations.
(6)
Interest on these amounts in accordance with the
Courts of Justice Act to the date of payment to the Plaintiff.
(7)
COSTS payable to the Plaintiff on a partial
indemnity basis.
[3]
The Defendants submit that the action is “res
judicata, frivolous, vexatious and an abuse of this Court’s process.” The
Defendants say that this action is a collateral attack on a decision of the Tax
Court of Canada, and raises the same issues as the Plaintiff raised in two
earlier proceedings in the Ontario Superior Court of Justice: the first action was
dismissed as being res judicata and an abuse of process as an attempt to
re-litigate the tax appeal; and the second action was dismissed after the Plaintiff,
who had then been declared to be a vexatious litigant, was not granted leave to
proceed.
[4]
The records filed establish the following
facts.
[5]
The Canada Revenue Agency (CRA) conducted an
audit of the Plaintiff’s 1994 to 1997 taxation years and disallowed certain
claimed expenses. The reassessments were appealed by the Plaintiff to the Tax
Court of Canada which issued judgment on June 5, 2006. The issues before the
Tax Court are outlined at paragraph 1 of the judgment, as follows:
Dr. Albert Deep is a
cardiologist. Over the past couple of decades his ability to carry on a full
medical practice has been significantly impeded by a persistent preoccupation
with litigation of every variety. A major issue in this case is the deductibility
of over $1 million of interest claimed during the years 1994 to 1997, a claim
which stems from a lengthy legal battle between Dr. Deep and the Bank of
Montreal (BMO). For the relevant periods, Deep also seeks to deduct legal costs
of $84,300 of which the Minister of National Revenue allowed $29,135,
automobile expenses of $32,017 of which the Minister allowed $1,801 and office
expenses of $313,794, of which the Minister allowed $43,457. The Minister also
alleges that Dr. Deep underreported his 1997 income by approximately $200,000.
[6]
The Plaintiff’s appeal was allowed as he was
permitted some small amount of additional deductible expenses from that
reflected in the Notices of Reassessments. However, the judge also found that
the Plaintiff had failed to report $193,213 of business income for the 1997
taxation year and he was liable for gross negligence penalties under the Income
Tax Act for “making false statements with respect to interest and with
respect to his other expenses, in that they were not business expenses, under
circumstances amounting to gross negligence.” Costs were awarded to the Crown.
[7]
An appeal to the Federal Court of Appeal was
dismissed on November 15, 2007: 2007 FCA 366. Leave to appeal to the Supreme
Court of Canada was dismissed on June 19, 2008, as was a subsequent motion for
reconsideration.
[8]
The Plaintiff also brought an action in the
Ontario Superior Court on September 5, 2005, against Canada Revenue Agency
(formerly Canada Customs and Revenue Agency) and Her Majesty the Queen, among
others, claiming negligence and misrepresentation in the reassessment. That
action was stayed pending the proceeding before the Tax Court and later
dismissed as an abuse of process.
Having lost before
the Tax Court, the Federal Court of Appeal (appeal dismissed) and the Supreme
Court of Canada (leave denied), Dr. Deep is now trying to re-litigate his
1993-97 tax reassessments by continuing a tort action for damages in this
court. The action is a collateral attack on the judgment of the Tax Court.
The issues in this action (the alleged tax errors and Charter breaches) have
been fully adjudicated. This action is therefore an abuse of process.
An appeal to the
Ontario Court of Appeal was dismissed on October 8, 2010.
[9]
The Plaintiff was subsequently declared a
vexatious litigant by the Ontario Superior Court and was refused permission to
continue a second action he had commenced in that court against the same
defendants as his previous action. The claim in the second action was the
following:
(1) The Judgment
of the Tax Court of Canada, dated June 5, 2006, and the Judgment of the Federal
Court of Appeal, dated November 15, 2007 be impeached on the ground of FRAUD.
(2) The Judgments
supra in paragraph (1) be SET ASIDE on the ground of subsequently discovered
evidence of COMPLICITY IN ANIMUS FURANDI by a CONSIPRACY.
(3) The
Reassessments and all claims for taxation for the fiscal periods encompassing
1993 to 1997 inclusively BE VACATED and any liens filed against the Plaintiff’s
personal residence or property be withdrawn.
(4) COSTS of this
action awarded to the Plaintiff on a substantial indemnity basis.
(5) SPECIAL
DAMAGES for unnecessary usurption of the Plaintiff’s time, interference with
enjoyment of life, legal costs both personal and retained solicitors,
transcript and court costs, carriage of the Tax Court proceedings, Federal
Court of Appeal costs, loss of business opportunity, impedance and obstruction
of important concomitant litigation of an approximate amount of $3.5 MILLION
DOLLARS.
(6) GENERAL
DAMAGES DUE TO MALICE, characterized by recklessness, carelessness and gross
negligence, GROSS FAULT, abuse of power, and administrative misfeasance, OF
$20.0 MILLION.
(7) AGGRAVATED
DAMAGES AND PUNITIVE DAMAGES in the discretion of the Court, $80 MILLION
suggested to deter arbitrary capricious state action targeted against Canadian
citizens and engineering of a confiscatory system tainted with tyranny,
despotism and dictatorship. This amount includes injury to credit and
reputation and complicity in libellous denunciations.
(8) Interest on
these amounts in accordance with the Courts of Justice Act to the date of
payment of the Plaintiff’s claim.
[10]
The claim in this action seeks, as the Plaintiff
claims the “reversal, nullification and lawful quashing of the Order of Justice
C. Miller of the Tax Court of Canada of June 5, 2006, Court File No. 2002-2009
(IT) G and the Order of the Federal Court of Appeal of November 15, 2007, Court
File No. A-284-06.” This Court quite simply has no jurisdiction to grant that
relief. Nor does this Court have jurisdiction to vacate the Minister’s
reassessments as is claimed in this action. Such claims are solely within the
domain of the Tax Court of Canada, the Federal Court of Appeal, and the Supreme
Court of Canada – all courts where the validity of the reassessments have been
previously determined.
[11]
The claims for “special damages” “general
damages” and “aggravated and punitive damages” arising out of those previous
court proceedings and their decisions are collateral attacks on the judgments
of those courts because no such damages, even if provable, can be awarded
absent a reversal or variation of those judgments. As matters now stand there
is quite simply no foundation for the claims for damages and there is no
jurisdiction in this Court to make the changes the Plaintiff seeks in order to
be awarded any damages.
[12]
For these reasons, this action is an abuse of
process and it is frivolous and vexatious and it must be struck. No leave to
amend is granted because the substance of the claim is not within this Court’s
jurisdiction. The Defendants are entitled to one set of costs which are fixed
at $2000.
ORDER
THIS
COURT ORDERS that the Statement of Claim is struck out in its entirety
without leave to amend, the action is dismissed, and the Defendants are
entitled to one set of costs fixed at $2,000.00.
"Russel W. Zinn"
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