Swift v. Canada, 2004 FCA 316

Date: 20040922

Docket: A-6-04

Citation: 2004 FCA 316

CORAM:        LINDEN J.A.

NADON J.A.

SEXTON J.A.

BETWEEN:

                                                                JOHN E. SWIFT

                                                                                                                                              Appellant

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                          Respondent

                                       Heard at Calgary, Alberta, on September 22, 2004.

                 Judgment delivered from the Bench at Calgary, Alberta, on September 22, 2004.

REASONS FOR JUDGMENT OF THE COURT BY:    SEXTON J.A.                                              

Date: 20040922

Docket: A-6-04

Citation: 2004 FCA 316

CORAM:        LINDEN J.A.

NADON J.A.

SEXTON J.A.

BETWEEN:

                                                                JOHN E. SWIFT

                                                                                                                                              Appellant

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                          Respondent

                                                    REASONS FOR JUDGMENT

                       (Delivered from the Bench at Calgary, Alberta, on September 22, 2004.)

SEXTON J.A.

[1]                This is an appeal from the Federal Court which struck out the Statement of Claim of the Appellant.

[2]                The claim relates to assessments made by Canada Customs & Revenue Agency ("CCRA") in 1998 against the Appellant for GST for the taxation years 1992 - 1994 as well as income tax for 1994.

[3]                The assessments were appealed to the Tax Court of Canada but were discontinued by the Appellant through his trustee in bankruptcy.

[4]                Subsequently, the Appellant sought to have the Tax Court of Canada set aside the discontinuance, alleging fraud by employees of CCRA. This motion was dismissed.

[5]                The Appellant appealed this dismissal to this Court which dismissed his appeal.

[6]                The Appellant filed a Statement of Claim in the Federal Court alleging that the tax assessments against himself were fraudulent and claiming damages.

[7]                Upon motion of the Respondent, the Federal Court Judge struck out the action on the basis that:

1.         these matters had been previously litigated and decided by the Tax Court and appeals therefrom;

2.         the Federal Court lacked jurisdiction to entertain challenges of assessments of tax liability;

3.         the Appellant's wife had not been made a party to these proceedings;

4.         the Statement of Claim was frivolous and vexatious.

[8]                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. All that happened in the Tax Court of Canada was that the Appellant's appeal of his tax assessments was withdrawn.

[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.

[10]            Accordingly, the Statement of Claim should not have been struck out.

[11]            The appeal will therefore be allowed without prejudice to the right of the Respondent to seek particulars.

[12]            Costs will be costs in the cause.

                                                                                                                                 "J. Edgar Sexton"    

                                                                                                                                                     J. A.    

                                                  FEDERAL COURT OF APPEAL

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          A-6-04

STYLE OF CAUSE:                          John E. Swift v. Her Majesty the Queen

PLACE OF HEARING:                    Calgary, Alberta

DATE OF HEARING:                      September 22, 2004

REASONS FOR JUDGMENT OF THE COURT: Linden, Nadon and Sexton JJ.A.

DELIVERED FROM THE BENCH BY:    Sexton, J.A.

DATED:                                             September 22, 2004      

APPEARANCES:

Mr. John E. Swift                                                                      FOR THE APPELLANT

(On His Own Behalf)    

Mr. Kerry E. S. Boyd                                                                FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. Kerry E. S. Boyd

Edmonton, Alberta                                                                    FOR THE APPELLANT

Morris A. Rosenberg

Deputy Attorney General of Canad       FOR THE RESPONDENT