Grant,
DJ:—Three
motions
are
before
the
court
for
consideration
at
this
time.
They
are
as
follows:
(a)
Notice
of
motion
by
all
the
defendants
other
than
Her
Majesty
the
Queen,
dated
October
3,
1979,
for
an
order
pursuant
to
the
provisions
of
rule
419
of
the
general
rules
and
orders,
striking
out
the
statement
of
claim
and
dismissing
the
action
against
the
said
defendants
and
in
the
alternative
pursuant
to
the
order
of
the
Honourable
Mr
Justice
Gibson,
made
on
June
25,
1979,
for
an
order
striking
out
the
statement
of
claim
and
dismissing
the
action
against
the
said
defendants
on
the
grounds
that
this
honourable
court
has
no
jurisdiction
in
the
action
herein
against
the
said
defendants.
(b)
Notice
of
motion
by
the
defendant,
Her
Majesty
the
Queen,
for
an
order,
pursuant
to
the
provisions
of
rule
419
of
the
general
rules
and
orders,
striking
out
sub-paragraphs
(g),
(h),
and
(i)
of
paragraph
2
of
the
statement
of
claim
and
for
a
further
order
abridging
the
time
required
for
the
service
and
filing
of
such
notice
of
motion.
(c)
Notice
of
motion
by
the
plaintiff
dated
September
10,
1979,
for
an
order,
pursuant
to
the
provisions
of
the
general
rules
and
orders
granting
leave
to
add
D
L
H
Davidson
as
a
party
defendant
and
for
an
order,
pursuant
to
the
provisions
of
the
general
rules
and
orders,
granting
leave
to
amend
the
statement
of
claim
herein
by
adding
the
following
paragraphs:
1.
The
defendant
D
L
H
Davidson
is
a
servant
and
an
employee
of
Her
Majesty
the
Queen
and
resides
in
the
Province
of
Ontario.
2.
By
letter
dated
April
25,
1979,
addressed
to
the
plaintiff,
the
defendant,
D
L
H
Davidson
purported
to
issue
a
direction
against
the
plaintiff,
pursuant
to
subsection
158(2)
of
the
Income
Tax
Act
for
the
payment
of
the
tax
penalty
and
interest
owing
with
respect
to
the
said
taxation
years
forthwith.
3.
In
purporting
to
act
as
Assistant
Deputy
Minister
of
National
Revenue,
Taxation,
the
defendant,
D
L
H
Davidson,
exercised
the
powers
and
performed
the
duties
of
the
Minister
pursuant
to
Regulation
900(1)
of
the
Income
Tax
Regulations.
4.
By
documents
dated
April
23,1979,
and
directed
to
the
Bank
of
Nova
Scotia,
422
Dundas
Street,
Woodstock,
Ontario
and
the
Royal
Trust,
453
Dundas
Street,
Woodstock,
Ontario,
respectively,
the
defendant
John
H
Morrison,
who
is
the
Director—
Taxation
in
the
London,
Ontario
district
office
of
the
Department
of
National
Revenue,
Taxation,
purported
to
act
as
Director—Taxation,
Department
of
National
Revenue,
Taxation,
at
the
London
district
office,
issued
a
“Demand
on
Third
Parties”
in
respect
of
the
purported
tax
liability
of
the
plaintiff,
W
R
Stephens.
The
sum
of
$167.89,
in
the
plaintiff’s
bank
account
at
the
Bank
of
Nova
Scotia,
was
seized
as
a
result
thereof
on
April
24,
1979.
5.
In
his
stated
capacity
as
Director—Taxation,
of
a
district
office
of
the
Department
of
National
Revenue,
Taxation,
the
defendant,
J
H
Morrison
was
purporting
to
act
under
authority
delegated
to
the
Director-Taxation
in
a
district
office
of
the
Department
of
National
Revenue,
Taxation,
to
exercise
all
the
powers
and
perform
all
the
duties
of
the
Minister
pursuant
to
Regulation
900(2)
of
the
Income
Tax
Regulations.
6.
At
all
material
times,
the
defendants,
R
Smith
and
J
M
Wilkie,
purported
to
act
on
behalf
of
the
Director,
Accounting
and
Collections
Division,
Department
of
National
Revenue,
Taxation.
7.
At
all
material
times,
the
defendants,
R
Smith
and
J
M
Wilkie,
purported
to
act
on
behalf
of
persons
to
whom
authority
to
exercise
powers
and
perform
duties
of
the
Minister
had
been
delegated
pursuant
to
Regulation
900
of
the
Income
Tax
Regulations.
8.
At
all
material
times
the
defendants,
L
Statham
and
J
Ross
acted
as
agents
of
the
other
defendants.
It
was
agreed
that
they
should
be
considered
together.
The
statement
of
claim
as
filed
alleges
that
the
defendants
Wilkie,
Morrison
and
Smith
are
employees
of
her
Majesty
the
Queen
but
does
not
state
what
was
the
nature
of
their
employment
or
that
they
were
acting
within
the
course
of
employment
with
the
Crown
when
they
did
the
various
acts
complained
of
by
the
plaintiff.
By
such
last
notice
of
motion
the
plaintiff
now
seeks
leave
to
amend
such
statement
of
claim
by
adding
thereto
eight
paragraphs
which
set
out
the
position
that
the
defendants
Wilkie,
Morrison
and
Smith
occupied
in
the
Dominion
department
of
National
Revenue.
The
Original
statement
of
claim
had
alleged
that
the
defendant
Statham
was
deputy
sheriff
of
the
county
of
Oxford
and
acted
in
that
capacity
in
the
acts
complained
of
and
that
the
defendant
Ross
was
a
constable
who
accompanied
some
of
the
defendants
to
the
plaintiffs
premises
at
the
time
of
the
alleged
seizure
of
his
goods
for
unpaid
income
taxes.
Sothatthestatement
of
claim
maybeconsideredinits
amended
form
I
propose
to
first
grant
leave
to
the
plaintiff
to
amend
as
requested.
In
such
motion
the
plaintiff
also
asks
leave
to
add
as
a
party
defendant
one
D
L
H
Davidson,
who
is
alleged
to
have
acted
as
Assistant
Deputy
Minister
of
National
Revenue
in
the
matters
complained
of
by
the
plaintiff.
I
also
propose
to
allow
Davidson
to
be
so
added
and
permit
him
to
enter
a
conditional
appearance
immediately
so
that
he
may
be
represented
on
this
motion
and
bound
by
the
decisions
made
herein.
I
accordingly
make
such
orders
now
and
assume
that
he
will
take
the
same
position
as
to
the
Jurisdiction
of
the
Court
that
the
defendants
Wilkie,
Morrison
and
Smith
have
and
that
he
will
be
represented
by
the
same
counsel
on
this
motion.
If
as
a
result
of
this
procedure
any
of
the
parties
desire
to
make
further
representations
they
may
do
so
before
the
order
is
issued.
In
the
statement
of
claim
the
plaintiff
alleges,
(a)
that
by
purported
notices
of
assessment
and
reassessment,
federal
and
provincial
income
tax
with
interest
thereon
and
penalties
for
late
filing,
were
assessed
against
him
for
the
years
1973
to
1977
inclusive
in
the
total
sum
of
$220,760.57
and
that
on
April
23,
1979,
he
received
a
letter
of
demand
for
payment
thereof
from
the
defendant
Smith;
(b)
that
the
plaintiff
by
letter
dated
April
20,
1979,
advised
the
defendant
Wilkie
that
he
took
the
position
that
such
assessments,
reassessments
and
notices
thereof
were
invalid
as
they
purported
to
be
on
behalf
of
Revenue
Canada,
a
non-existent
entity
in
law
and
that
he
later
advised
the
defendant
Smith
that
he
was
taking
such
position;
(c)
on
April
25,1979,
a
certificate
was
issued
from
the
Federal
Court
of
Canada
with
respect
to
the
plaintiff’s
failure
to
make
payment
under
such
notices
of
assessment
and
reassessment.
A
writ
of
fieri
facias
was
issued
directing
the
defendant
Statham
in
his
capacity
as
deputy
sheriff
of
the
county
of
Oxford
that
of
the
goods,
chattels
and
lands
and
tenements
of
the
plaintiff
within
his
jurisdiction
he
cause
to
be
made
the
sum
of
$166,640.21;
(d)
that
Statham
then
attended
at
the
plaintiff’s
premises
accompanied
by
the
defendants
Smith
and
Wilkie
who
instructed
the
defendant
Statham
to
seize
and
remove
all
chattels
located
on
the
premises;
(e)
that
Statham
seized
the
said
chattels
and
prohibited
their
removal
from
the
said
premises
by
sheriff’s
notice
of
seizure
dated
April
26,
1979;
(f)
that
the
defendant
Ross
accompanied
the
defendant
Statham
to
the
said
premises;
(g)
that
the
certificate
could
not
have
been
issued
pursuant
to
subsection
225(1)
as
there
had
not
been
30
days
notice
by
registered
mail
to
the
plaintiff
on
any
date
subsequent
to
April
15,
1979,
the
last
mentioned
date
being
the
date
payment
was
required
to
be
made
according
to
subsection
158(1)
of
the
act
and
that
therefore
the
purported
seizure
of
April
26,
1979
was
not
authorized
by
section
225.
On
this
motion
I
must
treat
all
facts
alleged
in
the
statement
of
claim
as
being
factual.
I
am
not
so
bound
by
the
interpretations
of
law
therein
contained.
The
plaintiff
seeks
the
following
relief:
(a)
that
the
assessment
of
this
income
for
all
such
years
be
declared
invalid
and
be
vacated;
(b)
that
the
assessments
and
reassessments
be
declared
null
and
void
and
that
there
are
no
taxes
due
thereon;
(c)
that
the
said
certificate
and
writ
of
fieri
facias
be
declared
null
and
void;
(d)
that
demands
on
third
parties
for
payment
be
declared
null
and
void;
(e)
that
the
defendant
Statham
be
enjoined
in
his
capacity
as
the
deputy
sheriff
of
the
county
of
Oxford
from
taking
any
further
proceedings
pursuant
to
the
said
writ
of
fieri
facias;
(f)
damages
for
wrongful
seizure
and
trespass
against
all
defendants
except
Morrison.
The
plaintiff
does
not
suggest
any
error
or
impropriety
in
the
assessment
or
reassessments
of
the
amount
of
his
income
tax
for
the
said
years
but
rather
takes
the
position
that
the
notices
thereof
were
invalid
by
reason
of
the
fact
that
they
were
not
properly
signed
or
were
sent
to
him
by
a
nonexistent
entity
in
law
as
they
purported
to
be
on
behalf
of
“Revenue
Canada,
Taxation’’.
While
he
does
not
allege
any
grounds
for
attacking
such
assessment
he
does
in
paragraph
2(a)
of
the
relief
sought,
ask
that
such
assessments
be
declared
invalid
and
vacated.
I
shall
now
consider
the
motion
by
the
defendants
Wilkie,
Morrison,
Smith,
Statham
and
Ross
for
an
order
pursuant
to
the
provisions
of
rule
419
of
the
General
Rules
and
orders
striking
out
the
statement
of
claim
and
dismissing
the
action
as
against
them.
In
paragraphs
1(a)
to
(h)
the
plaintiff
sets
out
particulars
of
the
alleged
illegal
notices
of
assessment
and
in
paragraph
1(i)
thereof
relates
the
facts
on
which
he
bases
his
claim
for
wrongful
seizure,
trespass
and
exemplary
damages.
The
basis
for
such
claim
is
not
one
which
is
founded
on
existing
federal
law.
While
the
alleged
illegal
seizure
of
the
plaintiffs’
goods
by
the
sheriff
under
the
Writ
of
Fiere
Facias
was
directed
towards
recovery
of
income
tax
alleged
to
be
owing
by
the
plaintiff
under
the
Dominion
income
tax
act,
that
fact
does
not
make
the
plaintiffs
cause
of
action
a
claim
which
is
based
on
federal
law.
A
right
to
sue
for
damages
for
wrongful
seizure
or
trespass
has
always
been
the
subject
of
provincial
law.
Pacific
Western
Air
Lines
Ltd
v
The
Queen
et
al
T-3972-78,
as
yet
unreported
April
7,
1979.
In
Foundation
Company
of
Canada
Limited
v
The
Queen
et
al,
[1979]
1
FC
877,
Jackett,
CJ
stated
at
878:
For
the
Federal
Court
to
have
jurisdiction
in
either
proceeding,
that
proceeding
must
be
to
enforce
a
right
conferred
by
Federal
law.
The
only
allegation
against
the
defendant
Ross
is
that
he
accompanied
the
deputy
sheriff
to
the
plaintiff’s
premises
on
the
day
in
question.
This
is
an
additional
reason
for
dismissing
the
action
as
against
him.
There
is
no
allegation
that
the
plaintiff
suffered
damage
as
a
result
of
the
seizure.
The
goods
were
not
removed
from
the
plaintiff’s
possession.
It
is
alleged
that
Smith
and
Wilkie
instructed
the
deputy
sheriff
to
seize
and
remove
the
chattels.
The
only
other
allegation
involving
Smith
and
Wilkie
is
that
the
plaintiff’s
solicitor
wrote
them
outlining
the
plaintiff’s
contention
that
the
assessments
were
invalid.
This
fact
does
not
involve
such
defendants
in
any
responsibility
which
permits
the
plaintiff
to
seek
relief
against
them.
The
deputy
sheriff
did
not
become
a
servant
of
the
Crown
by
seizing
the
chattels
under
the
said
writ.
He
was
only
enforcing
an
order
of
the
court
and
was
not
obliged
to
follow
the
instructions
of
any
of
the
other
defendants.
Section
13
of
the
Federal
Court
Act
only
gives
him
status
to
carry
out
the
duties
prescribed
by
the
writ
which
is
issued
by
the
court
and
not
by
any
of
the
defendants.
An
order
should
therefore
go
dismissing
the
action
as
against
the
defendants
Wilkie,
Smith,
Statham
and
Ross
on
the
ground
that
his
court
has
no
jurisdiction
to
entertain
the
action
against
them.
As
to
the
defendant
Ross
there
is
the
further
reason
that
the
statement
of
claim
discloses
no
reasonable
cause
of
action
against
him.
I
do
not
make
such
order
in
respect
of
the
defendant
Morrison
because
by
paragraph
4
of
the
amendments
to
the
statement
of
claim
which
I
have
permitted,
it
is
alleged
that
he
issued
a
“demand
on
third
parties”
in
respect
of
the
tax
liability
of
the
plaintiff
pursuant
to
section
224
of
the
Act
which
had
the
effect
of
attaching
moneys
in
the
plaintiff’s
bank
account.
This
was
an
attempt
by
a
servant
of
the
Crown
to
recover
tax
purportedly
owing
by
the
plaintiff
and
was
within
the
scope
of
employment
of
such
party
with
the
Crown.
It
is
a
different
situation
from
that
of
the
deputy
sheriff
who
was
not
a
servant
but
was
acting
in
his
seizure
by
virtue
of
the
instructions
contained
in
the
writ
issued
by
this
court.
In
respect
of
the
Crown’s
motion
to
strike
out
subparagraphs
G,
H
and
I
of
the
prayer
for
relief,
an
order
should
go
striking
out
such
paragraphs
on
the
basis
that
this
court
is
without
jurisdiction
to
entertain
the
claim
for
damages
for
wrongful
seizure
or
trespass.
In
view
of
the
fact
that
the
effect
of
these
orders
is
to
leave
only
Her
Majesty
the
Queen,
Morrison
and
Davidson
as
defendants
and
that
portions
of
the
pleading’s
are
hereby
struck
out,
and
amendments
made
thereto,
it
may
be
preferable
that
the
statement
of
claim
should
be
struck
out
in
its
entirety
for
purposes
of
clarity
and
that
the
plaintiff
should
be
allowed
to
deliver
an
amended
statement
of
claim
embodying
these
changes
within
20
days
herefrom
I
so
order.
The
defendants
should
have
their
costs
of
these
motions
from
the
plaintiff.
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