Docket: A-455-16
Citation:
2017 FCA 248
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CORAM:
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WEBB J.A.
NEAR J.A.
LASKIN J.A.
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BETWEEN:
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MARK LYNCH
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Appellant
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and
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HER MAJESTY THE
QUEEN
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Respondent
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REASONS
FOR JUDGMENT
LASKIN J.A.
[1]
Mark Lynch appeals from a judgment of Justice
Lafleur of the Tax Court of Canada dated September 15, 2016, dismissing, based
on the doctrine of abuse of process, Mr. Lynch’s appeal to the Tax Court from a
reassessment for his 2009 taxation year.
[2]
Mr. Lynch commenced the appeal to the Tax Court
in July 2014. In July 2015 the Tax Court judge made an order, on the agreement
of the parties, establishing a timetable for the conduct of the appeal. It
called among other things for the parties each to serve written discovery
questions by January 15, 2016, and to serve written answers by February 15,
2016.
[3]
The Crown served its written questions in
compliance with the order. Mr. Lynch did not. On February 7, 2016 Mr. Lynch
wrote to counsel for the Crown advising that he was in a position to reply to
the Crown’s questions, but would not do so unless his questions (as yet
unserved) were answered first.
[4]
Counsel for the Crown responded by letter dated
February 10, 2016. The letter reminded Mr. Lynch of the deadlines set by the
July 2015 order. It advised that if he did not provide his answers by the
applicable deadline, counsel would write to the Court seeking case management.
It also advised that since the time for him to serve his discovery questions
had expired, it would be necessary for him to bring a motion for an extension
if he wished to extend that deadline.
[5]
When Mr. Lynch failed to provide his answers by
the date fixed in the order, counsel for the Crown wrote to the Court on
February 16, 2016 explaining what had occurred and requesting case management
or other appropriate direction. Mr. Lynch then also wrote to the Court, on
February 26, 2016, referring to “the deadline dates
that were allegedly missed.” He advised the Court that “[t]he dates only appeared as guidelines” and that he
was under the impression that he had until February 15, 2016 to submit his
questions. He suggested that there had been “intentional
prosecutorial misconduct” in relation to his request to have his
questions answered first. He invoked his “reciprocal
charter right to question whomever raised the assessment.”
[6]
The Court convened a case management conference
on March 15, 2016 before Justice Lafleur. The Tax Court judge told Mr. Lynch
that the dates set out in the July 2015 order were not guidelines, but dates to
be followed, and that extensions were not automatic. She advised that if he
submitted a letter entitled “Notice of Motion”
setting out a request for an extension together with the reasons why he was not
able to comply with the agreed-upon dates, she would be able to issue a new
order setting up new dates. She added the following warning:
And I will not
issue costs on this, but I want to let you know that […] if you do not follow
the next order, the next dates, then we will have to discuss that more
seriously because as I said, it’s not guidelines, it’s dates that must be
followed by the parties.
[7]
On March 23, 2016, Mr. Lynch sent a letter to
the Court headed “Notice of Motion.” In it he accused
the Crown of acting unfairly. He reiterated his position that he would not
answer discovery questions unless his questions were answered first. To be
required to do so, he stated, would be prejudicial,
as there would
appear to be a breach of fundamental justice insofar as that there is not full
disclosure of [his] right under international covenants and the inherent
jurisdiction of the court and the courts [sic] ability to hear non
statutory arguments.
[8]
He went on later in the letter to demand that
the court provide him, “the man, specific remedy for a
constitutional violation,” and to suggest that the Income Tax Act “may be the wrong governing statute for the administration of
justice in a court of inherent jurisdiction (Tax Court), in the province of Alberta
as it applies to a private business, private man.”
[9]
The Court requested a response from the Crown.
Counsel for the Crown responded on April 22, 2016. She advised that the Crown
would not oppose a motion by Mr. Lynch for an extension of time to serve written
discovery questions, but that it would be appropriate for any new scheduling
order to provide for answers to discovery questions by a common deadline, as is
the ordinary practice.
[10]
A second case management conference was held before
Justice Lafleur on June 1, 2016. The Tax Court judge advised Mr. Lynch that the
letter he had sent to the Court was not what she had asked for. She was
nonetheless prepared to grant an extension to June 15, 2016 for Mr. Lynch
to serve his discovery questions, and to July 22, 2016 for the parties to serve
responses. Her order also provided dates for the subsequent steps leading up to
the hearing of the appeal. During the conference, the Tax Court judge told Mr.
Lynch that she was giving him “a last chance,”
and warned him that if he failed to comply with the order, the Court would
dismiss his appeal without the need for the Crown to file a motion.
[11]
When the Tax Court judge asked Mr. Lynch if he
had any comments on the proposed dates, he asked to address the Court. He
stated his belief that he owed no obligation to answer any questions or any
other obligations under the Income Tax Act. The Act, he stated, applies
only to “an officer who operates within the confines of
the Corporate Body of Canada,” and he was before the Court not in that
capacity but in his “full legal capacity as a man.”
He added that the Income Tax Act violated his “Constitutional
rights as a human being.” He proceeded to question the motivation of
both counsel for the Crown and the Tax Court judge. When the judge sought to
end the case conference, and advised that she would shortly issue an order that
she was asking him to follow strictly, he objected to her making any order, on
the basis that it too would be “a clear violation of
[his] constitutional rights as a human being.”
[12]
Following the case conference, on June, 1, 2016,
the Tax Court judge issued an order setting out the dates that had been
discussed. Mr. Lynch served his questions by the deadline, on June 15, 2016.
Most of his 19 questions cited case law, statute, or the Constitution and in
form, at least, amounted to questions of law pursuing the theme of alleged
violation of his constitutional rights and rights under international law,
largely on the basis that he was being “forced to play
a role of an officer in the corporate body called Canada.” Others
included questions such as whether Mr. Lynch, “or any
derivative thereof, [was] rendered to be an officer holding an office by
appointment in the body corporate of Canada,” and whether he was an “officer of
the geographical unit of Alberta.”
[13]
The Crown responded to these questions within
the time fixed by the June 1, 2016 order. The Crown objected to almost all of
them on the ground that they were irrelevant and improperly sought opinions on
questions of law.
[14]
On July 22, 2016, Mr. Lynch sent an affidavit to
counsel for the Crown criticizing the Crown’s answers to his questions as
arbitrary and “an excuse not to provide answers
sought.” He went on to state that without the answers to his questions,
he was unable to answer “any questions relating to, or
asked under of, [sic] the authority of the Income Tax Act,”
because answering “may improperly deem [him] to be a
legal class of person of a taxpayer, which could violate (or force [him] to
surrender) [his] constitutionally protected fundamental human rights and
freedoms.” He provided no further response to the Crown’s questions.
[15]
Counsel for the Crown wrote to apprise the Court
of what had occurred and to seek direction as to appropriate next steps. She
submitted that in accordance with what the Tax Court judge had stated at the
June 1, 2016 case conference, the appeal should be summarily dismissed.
[16]
The Tax Court judge granted judgment dismissing
the appeal with costs. The judgment recited among other things the two case management
conferences, the extension that had been granted, the warning provided to Mr.
Lynch that if he did not answer the Crown’s questions the appeal could be
dismissed without further formality, his refusal to answer the Crown’s
questions, and the grounds for the refusal that he provided. The recitals also
referred to the inherent jurisdiction of the Tax Court to control its own
process and prevent abuse. It is from this judgment that Mr. Lynch now appeals.
[17]
The judgment of the Tax Court is a discretionary
order. This Court may therefore interfere only if the judge incorrectly decided
a question of law or made a palpable and overriding error of fact (Hospira
Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215,
[2017] 1 F.C.R. 331 at paras. 64-66, 69, 72; Paletta v. Canada, 2017 FCA
33, 2017 DTC 5039 at para. 4). In my view the Tax Court judge made neither
category of error that would warrant interfering with her decision.
[18]
First, she made no error of law. The Tax Court
of Canada, like other courts, has jurisdiction to address an abuse of process in
the conduct of proceedings before it (Toronto (City) v. C.U.P.E., Local 79,
2003 SCC 63, [2003] 3 S.C.R. 77 at para. 35; Main Rehabilitation Co. v.
Canada, 2004 FCA 403, [2005] 1 C.T.C. 212 at para. 7). Abuse of process is
a flexible doctrine, based on the idea that a court has an inherent discretion
to terminate litigation at the preliminary stage in order to prevent abusive
proceedings that bring the administration of justice into disrepute (Timm v.
Canada, 2014 FCA 8, [2014] F.C.J. No. 61 at para. 30). Both the taking of
positions like those Mr. Lynch adopted here and conduct that frustrates the
discovery process have been characterized as abusive in this sense (Cassa v.
R., 2013 TCC 43, 2013 DTC 1060 at para. 14; Fafard v. Canada, 1999
CanLII 9103, [2000] 2 C.T.C. 362 (F.C.A.) at paras. 5-6). Here the Tax Court
judge could also have relied on paragraph 116(4)(a) of the Tax Court
of Canada Rules (General Procedure), SOR/90-688a, which expressly
authorizes dismissal of an appeal where the appellant refuses or fails to
answer a proper question on a written examination, and paragraph 126(4)(b),
by which a case management judge may dismiss an appeal where the appellant
fails to comply with the time requirements set out in a case management
timetable. They too demonstrate the potential seriousness of obstructing litigation
in the Tax Court.
[19]
Second, while the summary dismissal of an appeal
is a drastic remedy, I also see no palpable and overriding error of fact in the
exercise of the Tax Court judge’s discretion. She gave Mr. Lynch ample
opportunity to comply with her orders. She expressly warned him of the
consequences if he failed again to comply. As another Tax Court judge observed
in Cassa, above, behaviours such as those in which Mr. Lynch engaged “hinder and limit the availability of Court resources for
those self-represented litigants who are making an honest attempt to advance
their appeals through the Court system in a timely manner” (at para.
14).
[20]
I would therefore dismiss the appeal. Since counsel
for the Crown advised at the hearing that if the Crown was successful he would
not be seeking costs, I would do so without costs.
“J.B. Laskin”
“I agree.
Wyman W. Webb J.A.”
“I agree.
D. G. Near J.A.”
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