Citation: 2010 TCC 523
Date: 20101014
Docket: 2009-1680(IT)I
BETWEEN:
BRIAN JENNER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Tardif J.
[1]
This is a very unique
case in that, based on the circumstances, it appears that the appellant wants restart
or redo a trial in which he was unsuccessful both before the Tax Court of
Canada and the Federal Court of Appeal. The Supreme Court of Canada denied him permission
to be heard.
[2]
Faced with such a situation,
the respondent is asking the Court to sanction the appellant for abuse of
process.
[3]
I explained to the appellant
at length that he could not restart a trial that had already taken place, that
this Court could not revise a decision that had already been rendered and,
moreover, confirmed by the Federal Court of Appeal.
[4]
In reaction to that, the
appellant stated and reiterated that there are new developments.
[5]
The assumptions of fact
relied upon in support of the appeal are as follows:
(a) The appellant was
employed by The Helicopter Association of Canada (hereinafter, “HAC”);
(b) On October 16, 2003, the appellant purchased
a Land Rover utility vehicle for $83,000 (hereinafter “vehicle”);
(c) In 2003, the appellant paid $1,147.78 in
interest on the amount borrowed to purchase the vehicle;
(d) The vehicle was leased to HAC for only 5
years, January 1, 2004, to December 31, 2008;
(e) HAC put the vehicle at the appellant’s disposal
solely for work-related purposes.
[6]
The appellant explained
the reasoning behind the matter and what led him to reappeal. He mainly stated
that the judge who heard the case relied on certain factual assumptions that
proved to be quite different in the months that followed the judgment. From
that, the appellant concluded that it involved a new case.
[7]
Contrary to the appellant’s
claim, this appeal involves the same years and the facts are exactly the same
as those of the first trial.
[8]
As Archambault J.
pointed out, the obligation for a lessor of a property to perform major repairs
does not transform property income into business.
[9]
At the first trial, the
appellant was able to argue all the facts he deemed useful and relevant to meet
the burden of proof imposed on him, but also, and mainly, to justify the
relevance of his appeal. In the case at bar, the appellant wishes to make the
same argument again in a different way.
I - Res judicata
[10]
Article 2848 of the Civil
Code of Québec (C.C.Q.), which states that res judicata is found
in Book Seven dealing with the evidence and reads as follows:
The authority of a final
judgment (res judicata) is an absolute presumption; it applies only to
the object of the judgment when the demand is based on the same cause and is
between the same parties acting in the same qualities and the thing applied for
is the same.
[11]
In order for res
judicata to apply, three conditions must be met: there must be a mutuality
of parties (1), identity of
object (2) and identity of cause (3). The
mutuality of parties is not an issue in this case, whereas the issues of
identity of object and cause are less obvious.
A – Identity of cause
[12]
The Supreme Court of Canada
describes in the following terms the notion of cause:
First, it is
clear that a body of facts cannot in itself constitute a cause of action.
It is the legal characterization given to it which makes it, in certain cases,
a source of obligations. A fact taken by itself apart from any notion of
legal obligations has no meaning in itself and cannot be a cause; it only
becomes a legal fact when it is characterized in accordance with some rule of
law. The same body of facts may well be characterized in a number of ways
and give rise to completely separate causes. For example, the same act
may be characterized as murder in one case and as civil fault in another.
[13]
Dufresne J. of the
Superior Court of Quebec summarized the words of the Supreme Court as follows:
[Translation]
The cause of action is the legal
fact that gave rise to the right claimed. This is what must be proven to be
successful.
B – The identity of object
[14]
Professor Royer defined
the notion of object as follows:
[Translation]
The subject of a legal action is the benefit a litigant
seeks or the right he or she wishes to have sanctioned, diminished or abrogated.
The presumption of section 2848 C.C.Q. does not require that there be a
physical identity of the thing demanded. It suffices that there be an abstract
or formal identity of the right claimed.
[15]
In the case at bar, the
only difference is in the way he presented his case based on the same facts. Having
read, understood and learned a certain number of elements as to the scope of
certain provisions of the Act and/or judgments, the appellant would like to
have a second chance to argue his points; to subscribe to the logic of the appellant
would mean that anyone could restart a lost trial with new counsel, which is
obviously completely contrary to the stability and coherence of the system.
[16]
Furthermore, the appellant
seems to be earnest on the one hand, and on the other, the obvious serious
preparation of his case has allowed him to find that the issue involves a
number of aspects of which certain characteristics can lead to various interpretations.
The appellant undoubtedly identified certain elements which he did not know
existed in his first experience before the Court and would like to take
advantage of this appeal to introduce those elements so that they be taken into
account.
[17]
A judgment was rendered
based on the evidence submitted by the parties; the judgment is definitive and
cannot be revised by way of an appeal that is now before the Court.
[18]
The appellant
appeal that judgment and the Federal Court of Appeal confirmed the judgment of
the Honourable Justice Pierre Archambault.
[19]
Still not accepting the
result, the appellant tried to obtain from the Supreme Court of Canada leave to
appeal, which was denied.
[20]
The judgment of Archambault
J. and that of the Federal Court of Appeal which confirmed it settled the
case’s fate once and for all.
[21]
As regards the request
for sanction for abuse of process, I do not believe that it is founded and,
consequently, I dismiss it.
[22]
Abuse of process has at
its foundation the decision of the Supreme Court of Canada in Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.).
The power to intervene in cases of abuse of process is described as an inherent
and residual discretion. The doctrine of abuse of process engages
the inherent power of the court to prevent the misuse of its procedure, in a
way that would be manifestly unfair to a party to the litigation before it or
would in some other way bring the administration of justice into disrepute.
Abuse of process is a doctrine that was applied by the Federal Court of Appeal in
tax cases.
[23]
The doctrine of abuse
of process may be applied where “the
litigation before the court is found to be in essence an attempt to relitigate
a claim which the court has already determined”
and it concentrates on the following principles:
. . .First, there can be no assumption that relitigation
will yield a more accurate result than the original proceeding. Second,
if the same result is reached in the subsequent proceeding, the relitigation
will prove to have been a waste of judicial resources as well as an unnecessary
expense for the parties and possibly an additional hardship for some
witnesses. Finally, if the result in the subsequent proceeding is
different from the conclusion reached in the first on the very same issue, the
inconsistency, in and of itself, will undermine the credibility of the entire
judicial process, thereby diminishing its authority, its credibility and its
aim of finality.
[24]
According to the
Supreme Court, the doctrine of abuse of process should not be applied in the
following cases:
. . .There may be instances where relitigation will enhance,
rather than impeach, the integrity of the judicial system, for example: (1)
when the first proceeding is tainted by fraud or dishonesty; (2) when fresh,
new evidence, previously unavailable, conclusively impeaches the original
results; or (3) when fairness dictates that the original result should not be
binding in the new context. . . .
. . . There are many circumstances in which the bar against
relitigation, either through the doctrine of res judicata or that of
abuse of process, would create unfairness. If, for instance, the stakes in
the original proceeding were too minor to generate a full and robust response,
while the subsequent stakes were considerable, fairness would dictate that the
administration of justice would be better served by permitting the second
proceeding to go forward than by insisting that finality should prevail. An
inadequate incentive to defend, the discovery of new evidence in appropriate
circumstances, or a tainted original process may all overcome the interest
in maintaining the finality of the original decision.
(Emphasis
added.)
[25]
The appellant submits
that there are new legal arguments to make. In that regard, the Supreme Court
does not consider that the existence of new arguments may preclude the application
of the doctrine of abuse of process.
[26]
Determined and
tenacious, the appellant, who is earnest, would like this Court to take into
consideration the hypothetical elements raised by Archambault J., which, in the
months that followed the judgment, became a reality. Even it involved one of
the major forces behind the decision of Archambault J., which is not the case, it
would not change anything with regard to res judicata.
[27]
However, given the
uniqueness of the case in a context where the appellant represents himself, I
prefer to accept the thesis of tenacity and determination rather than that of
stubbornness or abuse.
[28]
I also understood that
the appellant would have perhaps prepared and presented different evidence had
he known beforehand all the case law he consulted after the trial before Archambault
J.
[29]
From that perspective,
it is easy to imagine and understand the underlying rationale for the res judicata rule, which contributes to coherence in the judicial
system. A multitude of options exist following a judgment. I am referring
specifically to the reopening of an inquiry, revocation and appeal. They are procedures
that are subject to strict and specific conditions which are moreover also subject
to mandatory timelines.
[30]
In the case at bar, the
decision of the Federal Court of Appeal permanently halted the tax implications
of the economic activities undertaken by the appellant and at issue in this
case for the 2003 taxation year.
[31]
For these reasons, the
appeal is dismissed.
Signed at Ottawa, Canada, this 14th day of October 2010.
“Alain Tardif”
Translation certified true
on this 6th day
of December 2010.
Daniela Possamai,
Translator
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