Docket: 2009-1242(IT)I
BETWEEN:
ROBERT S. MACLEOD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Motion
heard on December 10, 2009 at Sydney, Nova Scotia
Before: The Honourable Justice
Valerie Miller
Appearances:
|
For the Appellant:
|
The
Appellant himself
|
|
Counsel for the Respondent:
|
Shannon Williams
|
____________________________________________________________________
ORDER
The motion by the Respondent is granted and
the Notice of Appeal is struck on the basis that it fails to disclose any
grounds for appeal.
Signed at Ottawa,
Canada, this 20th day of January 2010.
“V.A. Miller”
Citation: 2010TCC38
Date: 20100120
Docket: 2009-1242(IT)I
BETWEEN:
ROBERT S. MACLEOD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
V.A. Miller, J.
[1]
This is a motion by the
Respondent for an Order to strike the Notice of Appeal; or, in the alternative,
an Order to have the Appellant amend the Notice of Appeal so that it conforms
to the Tax Court of Canada Rules (Informal Procedure). The Grounds for
the Motion are that the Notice of Appeal discloses no reasonable grounds of
appeal; and, the Notice of Appeal is frivolous and vexatious.
[2]
The Appellant was represented
at the hearing of this motion by his nephew, Stewart MacLeod, who had prepared
the Notice of Appeal.
[3]
The test that is used
for striking out pleadings is whether, assuming the facts stated in the
pleadings are true, is it “plain and obvious” that the appeal cannot succeed[1]? A Notice of
Appeal will only be struck if the appeal is certain to fail[2].
[4]
The Tax Court of Canada
has jurisdiction to vacate or vary an assessment if it is found that the
amounts assessed are not owing under the Income Tax Act[3].
This Court does not have the jurisdiction to allow an appeal on the basis of an
abuse of process at common law. As well, it has been consistently held that the
actions of the Canada Revenue Agency (“CRA”) cannot be taken into account in an
appeal against assessments[4].
[5]
In the present appeal,
the Notice of Appeal does not challenge the assessments. The amount and
calculation of tax is not questioned. At the hearing, Mr. MacLeod stated that
the amount of taxes assessed was not at issue. The only issue raised in the
Notice of Appeal and at the hearing of this motion is that the Appellant has
been cruelly and unjustly harassed by the CRA.
[6]
When I apply the test
that was stated in Hunt v. Carey Canada Inc. and I assume that all of
the facts plead in the Notice of Appeal are true, I conclude that the appeal
cannot succeed.
[7]
The motion is granted
and the Notice of Appeal is struck on the basis that it fails to disclose any
grounds for appeal. No costs are awarded.
Signed at Ottawa, Canada, this 20th day
of January 2010.
“V.A. Miller”
CITATION: 2010TCC38
COURT FILE NO.: 2009-1242(IT)I
STYLE OF CAUSE: ROBERT S. MACLEOD AND THE QUEEN
PLACE OF HEARING: Sydney, Nova Scotia
DATE OF HEARING: December 10, 2009
REASONS FOR ORDER
BY: The Honourable Justice Valerie Miller
DATE OF ORDER: January 20, 2010
APPEARANCES:
|
For the
Appellant:
|
The Appellant himself
|
|
Counsel for the
Respondent:
|
Shannon Williams
|
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the
Respondent: John H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa,
Canada
[3]
Ludco Enterprises Ltd. v. R., [1996] 3 C.T.C. 74 (FCA)
[4]
Supra, note 2 at paragraph
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