Citation: 2012 TCC 360
Date: 20121016
Docket: 2012-2889(IT)G
BETWEEN:
OBARO OKOROZE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Paris J.
[1]
The respondent is
seeking an order pursuant to sections 7 and 8 of the Tax Court of
Canada Rules (General Procedure) (“Rules”) setting
aside the notice of appeal herein and granting the appellant 60 days to file a
new notice of appeal. The motion is being decided on the basis of written
submissions filed by the parties.
[2]
Sections 7 and 8 of the
Rules read:
NON-COMPLIANCE
WITH THE RULES
Effect
of Non-compliance
7. A
failure to comply with these rules is an irregularity and does not render a
proceeding or a step, document or direction in a proceeding a nullity, and the
Court,
(a)
may grant all necessary amendments or other relief, on such terms as are just,
to secure the just determination of the real matters in dispute, or
(b)
only where and as necessary in the interests of justice, may set aside the
proceeding or a step, document or direction in the proceeding in whole or part.
Attacking Irregularity
8. A motion
to attack a proceeding or a step, document or direction in a proceeding for
irregularity shall not be made,
(a) after
the expiry of a reasonable time after the moving party knows or ought
reasonably to have known of the irregularity, or
(b) if the
moving party has taken any further step in the proceeding after obtaining
knowledge of the irregularity,
except with leave
of the Court.
[3]
The respondent asserts
that the notice of appeal fails to comply with paragraph 21(1)(a) of
the Rules because it does not set out the material facts upon which the
appellant intends to rely to the issues to be decided or the reasons upon which
the appellant intends to rely.
[4]
Paragraph 21(1)(a)
of the Rules requires the originating document in an appeal from an
assessment under the Income Tax Act (“ITA”) to be
filed in Form 21(1)(a). That form, which the appellant attached to
his notice of appeal, lists the information that a notice of appeal must
contain, including the material facts, statutory provisions and reasons to be
relied on, the issues to be decided, and the relief sought.
[5]
In response to the
respondent’s application, the appellant says that he has provided all the
necessary facts in his notice of appeal.
[6]
In his notice of appeal,
the appellant indicates that he is appealing from reassessments of his 2004 to
2009 taxation years. I find, though, that he has included a great deal of
material in his notice of appeal that is not properly part of a notice of
appeal. Some of that material concerns matters not within the jurisdiction of
this Court to decide.
[7]
For instance, the
appellant challenges certain collection procedures undertaken by the Canada
Revenue Agency (“CRA”) to collect on the reassessments. In Moss v. the Queen, the Federal Court of Appeal stated:
If unlawful or improper tax collection
actions occur, and are proved, it may be possible to obtain a remedy by
commencing appropriate proceedings in the Federal Court, but as a matter of
law, the Tax Court of Canada has no jurisdiction to set aside or vacate a
reassessment because of such actions.
[8]
The appellant also alleges
improper conduct by the CRA officers handling his file. However, the conduct
of officials of the CRA are not grounds for challenging an assessment: see Main Rehabilitation Co. v. Canada:
. . . it
is also plain and obvious that the Tax Court does not have the jurisdiction to
set aside an assessment on the basis of an abuse of process at common law… and to the “taxpayer
relief” provisions of the ITA.
[9]
As well, the appellant refers
to the “taxpayer relief provisions” of the ITA in his notice of appeal. I
understand this to be a reference to the fairness provisions in subsection
220(3.1) of the ITA. However, this Court decided in Palin v. The
Queen that decisions of the Minister under those provisions must be made
“by way of judicial review to the Federal Court of Canada.”
[10]
The appellant also
puts in issue the reassessment of his spouse whereby she was disallowed Child
Tax Benefits. If the appellant’s spouse disagrees with that reassessment she
must take the steps set out in the ITA to object to and appeal it
herself.
[11]
These matters are not
within the Court’s jurisdiction and are improperly pleaded.
[12]
The appellant’s notice
of appeal also refers to a number of documents that he says support his case.
The documents to be relied on are evidence, because the appellant will be using
them to prove the facts he is relying on to show that the reassessments are
incorrect. If the appellant wishes to rely on them, he should list them in the
list of documents that he is required to file once the pleadings are closed. It
is not proper to refer in a pleading to evidence upon which a party intends to
rely.
[13]
If the portions of the
notice of appeal to which I refer above are disregarded, what remains does not
meet the requirements of paragraph 21(1)(a) of the Rules.
The remainder of the notice of appeal does not set out clearly in what
respect(s) the appellant believes the reassessments to be incorrect nor
does it provide a concise statement of the material facts and reasons that he
intends to rely on to support his position that the reassessments are
incorrect.
[14]
In Zelinski v. The
Queen,
Bowie J. of this Court stated:
The purpose of
pleadings is to define the issues in dispute between the parties for the
purposes of production, discovery and trial. What is required of a party
pleading is to set forth a concise statement of the material facts upon which
she relies. Material facts are those facts which, if established at the trial,
will tend to show that the party pleading is entitled to the relief sought. . .
.
[15]
This Court has held
that improper pleadings are an irregularity within the meaning of
section 7 of the Rules (see Kossow v. The Queen) The Rules
also specifically provide at section 53 for striking out pleadings.
Section 53 reads:
Striking
out a Pleading or other Document
53. The
Court may strike out or expunge all or part of a pleading or other document,
with or without leave to amend, on the ground that the pleading or other
document,
(a)
may prejudice or delay the fair hearing of the action,
(b)
is scandalous, frivolous or vexatious, or
(c)
is an abuse of the process of the Court.
[16]
I agree with the
respondent that the deficiencies in the notice of appeal are so extensive that
the proper remedy is to set it aside and to allow the appellant 60 days
from the date of my order to file and serve a new notice of appeal that meets
the requirements of paragraph 21(1)(a) of the Rules, and
that does not include material related to those issues noted above which are
not within this Court’s jurisdiction to decide. This was the approach endorsed
by the Ontario Court of Appeal in Lysko v. Braley. At
paragraph 11 of that decision, the Court wrote:
I agree with the motions judge’s statement at para. 63 that
the statement of claim “includes a plethora both of evidence and of irrelevant
material and fails to be concise to the point that the defendants are hindered
in developing a responsive pleading.” Thus, I agree with the motions
judge that although certain of the causes of action are to go forward, the
appropriate remedy is to strike the pleading in its entirety and grant the
appellant leave to deliver a fresh statement of claim.
[17]
Likewise, in this case,
the respondent is hindered in preparing a responsive pleading by the inclusion
by the appellant of large amounts of facts, information and evidence related to
matters outside of the Court’s jurisdiction, and by the lack of precision
regarding his objections to the reassessments he wishes to appeal and the facts
he intends to rely on. Self‑represented taxpayers who bring appeals under
the General Procedure must be held to a reasonable standard of
compliance with the Rules in order to ensure that the litigation
proceeds in an orderly, efficient and fair manner. It is a basic requirement of
pleading in the General Procedure that an appellant set out clearly what issues
he or she is putting in dispute and the material facts that will be relied
upon.
[18]
I will allow the
respondent’s motion, and the notice of appeal is struck and the appellant shall
have 60 days from the date of my order to file a fresh notice of appeal
that complies with paragraph 21(1)(a) of the Rules.
Signed at Ottawa, Canada, this 16th day of October
2012.
“B.Paris”
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