Docket: T-1693-13
Citation:
2015 FC 724
Ottawa, Ontario, June 9, 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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DENNIS A. KEAY
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Applicant
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and
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HER MAJESTY THE
QUEEN
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Respondent
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JUDGMENT AND REASONS
[1]
The Plaintiff, Mr. Keay, alleges that he has
suffered damages and other losses as a result of actions and omissions by the
Canada Revenue Agency [CRA] and its agents or employees.
[2]
In particular, the Plaintiff asserts that the
conduct of the CRA and certain of its officials in the reassessments of his
2003 and 2004 income tax returns was negligent, an abuse of power, constituted
misfeasance in public office, unlawfully interfered with or converted his
rental income and expenses to the benefit of his former spouse, and violated
his rights under sections 7 and 15 of the Canadian Charter of Rights and
Freedoms, Part I of the Constitution Act, 1982, being Schedule B to
the Canada Act 1982 (UK), 1982, c 11 [Charter]. The Plaintiff
further asserts that the CRA and certain of its officials were wilfully blind,
withheld material information from him and ignored material facts. This
conduct, the Plaintiff contends, caused him to suffer unnecessary costs and
expenses as well as emotional distress.
[3]
Consequently, the Plaintiff has taken this
action against the Defendant, and asks this Court to award him his unnecessary
litigation costs, damages, aggravated damages and consequential damages in
various amounts as stated in paragraph 40 of his Amended Statement of Claim
dated January 29, 2015 (the initial Statement of Claim being dated October
15, 2013).
[4]
In advance of the hearing of this matter, a
joint book of exhibits was filed. These exhibits were received in evidence at
the commencement of the hearing and collectively marked as exhibit J-1. A joint
book of case authorities was also filed in advance of the hearing of this
matter. The Plaintiff also filed a book of case authorities as part of his
document record.
[5]
The Plaintiff had also placed before the Court
three volumes of additional documentation, but the Defendant objected to most
of this documentation being received as evidence on the basis that it was not
only irrelevant but not evidence at all. The Defendant had no objection,
however, to certain parts of this documentation being received as evidence,
notably correspondence between the Plaintiff and the CRA during 2007 and 2009,
and this correspondence was collectively identified as exhibits J-2 (in the
case of the 2007 correspondence) and J-3 (in the case of the 2009
correspondence).
[6]
The Plaintiff also introduced a partial copy of
the Defendant’s Affidavit of Documents, which included the index and two of the
documents, as well as an extract of the transcript of the hearing before the
Tax Court of Canada.
[7]
After making his opening statement, the Plaintiff
called only himself as a witness. The Plaintiff's testimony focused on what he
regarded as matters which had been ignored or suppressed by the CRA and its
officials, and on how the 2003 and 2004 reassessments by the CRA were based on
wrong information. It is not necessary to summarize the Plaintiff's testimony
in any great detail in this case since, for the most part, he just repeated the
various allegations stated in the Amended Statement of Claim. The Defendant
elected not to cross-examine the Plaintiff on his testimony. The Plaintiff then
closed his case.
[8]
The Defendant did not call any witnesses on its
behalf and did not submit any evidence other than that contained in exhibits
J-1, J-2 and J-3.
[9]
In his reply and closing statement, the
Plaintiff argued that the facts and evidence to support his claims were proven
by his testimony and can also be seen in the decision of the Tax Court of
Canada (reported as Keay v The Queen, 2008 TCC 481, 2008 DTC 4704) and
the appeal from that decision to the Federal Court of Appeal (reported as Keay
v Canada, 2009 FCA 170, 2009 DTC 5118). He further argued that, after the
decision by the Federal Court of Appeal in 2009, the CRA should have re-opened
and re-evaluated the assessments in dispute and not just waived the interest
and penalties.
[10]
The Plaintiff asserts that he is not impugning
or challenging the 2003 and 2004 reassessments by the CRA but, rather, is
impeaching the conduct of the CRA and its officials before and after the Tax
Court and Court of Appeal proceedings. He contends that the CRA did not honour
the promises made to him and led him to believe that there would be an
independent reassessment. He further contends that the CRA owed him a duty of
care and ignored its own publications, audits and reassessments.
[11]
For its part, the Defendant argued that the CRA
and its officials acted reasonably at all times and did nothing untoward in
auditing, assessing or reassessing the Plaintiff's income tax returns.
According to the Defendant, all of the Plaintiff's allegations, including his
claims of misfeasance, negligence, and breach of Charter rights, are
contrary to the evidence as well as the law. The Defendant submits that the
Plaintiff has not proven his case.
[12]
The burden of proof rests on the Plaintiff to
prove the claims and allegations asserted in his Amended Statement of Claim. It
is not incumbent upon the Defendant to disprove those allegations.
[13]
Furthermore, there is only one civil standard of
proof at common law and that standard is proof on a balance of probabilities: FH
v McDougall, 2008 SCC 53 at paragraph 40, [2008] 3 S.C.R. 41. This standard is
often expressed by saying that something must be shown to be more likely than
not.
[14]
The determinative issue for the Court to decide,
therefore, is whether the Plaintiff has met his burden of proof.
[15]
I agree with the Defendant that the Plaintiff
has not proven his case. Although the Plaintiff's testimony was not challenged
by the Defendant, it was such that it did not provide sufficient facts or
evidence to show, on a balance of probabilities, that the CRA and its officials
misconducted themselves as alleged by the Plaintiff or that they violated his Charter
rights in any way.
[16]
The Plaintiff has not established that the
conduct of the CRA and its officials was unconstitutional, unlawful, negligent
or otherwise tortious in any way whatsoever. At best, the Plaintiff's claims
are just bald assertions without any factual foundation capable of proving the
causes of action alleged. Even if all of the three volumes of additional documentation
adduced by the Plaintiff, as well as the other documents introduced by the
Plaintiff at the outset of the hearing of this matter, were accepted as
evidence, that documentation is nothing more than documentation which was
previously adduced by the Plaintiff before the Tax Court and Court of Appeal.
This Court is not the forum for yet another hearing of the Plaintiff’s tax
troubles.
[17]
In the result, therefore, the Plaintiff’s claim
fails and his Amended Statement of Claim is dismissed.
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