|
Citation: 2008TCC686
|
|
Docket: 2008-1152(IT)I
|
|
BETWEEN:
|
|
|
|
WALTER T. YOURKIN,
|
|
Appellant,
|
|
and
|
|
|
|
HER MAJESTY THE QUEEN,
|
|
Respondent.
|
REASONS FOR JUDGMENT
(Delivered orally from the Bench at Toronto, Ontario on November 4, 2008)
Margeson J.
[1] The sole issue before the Court is well
set out in the Notice of Appeal which has been canvassed here today, and that
is whether or not the Appellant is entitled to claim spousal support payments
of $13,587 as a deduction for income for the 2005 and 2006 taxation years.
[2] There are two arguments made by counsel for the Respondent today
for dismissal of this case, one is the res judicata argument and the
other is the argument on the basis of the facts.
[3] With
respect to the argument of res judicata the Court is satisfied that the
cases referred to by counsel for the Respondent are applicable here. The
judgments of Justices McArthur and Paris on the facts themselves are basically
the same as in this matter before the Court today. The only difference might be
the amounts that were involved, but the facts were the same.
[4] The
basic argument is whether or not the judgment of Justice Walsh is binding upon
this Court and whether this Court can over turn it. If it is binding on this
Court then, of course, there is no basis for the Appellant to make the argument
that he is entitled to deductions.
[5] The
Court is satisfied that res judicata does apply here. It is satisfied,
on the basis of the Supreme Court decision, that all the conditions precedent
to res judicata have been met.
[6] The
case of Angle v. M.N.R., [1975] 2 S.C.R. 248, was a decision of the
Supreme Court of Canada and it sets out what the requirements are for res judicata
being applied. The factors that must be considered in estoppel are discussed.
[7] The
Court is satisfied that the same question has been decided twice by this Court.
The judicial decision which is said to create the estoppel is final. The Court
is satisfied that neither the judgments of Justices McArthur nor Paris were
appealed and so those judgments are final. Three, that the parties to the
judicial decision or their privies were the same persons as the party to the
proceedings in which the estoppel is raised. The Court is satisfied that that
applies here too.
[8] On
the basis of the issue of estoppel, the Court finds that it applies and the
issue that is before the Court today has already been decided. The Appellant
cannot be successful and on that basis the Court dismisses the appeals and
confirms the Minister’s assessment.
[9] Secondly,
if the Court is wrong and some other Court should decide that the issue of
estoppel does not apply; this Court has to consider the merits of the case. On
the basis of the merits of the case, the Court is satisfied that the Appellant
has not made out a good case, he has not satisfied the Court that the Minister
was wrong in making the assessment that he did. That finding hinges entirely on
the fact that before the Court today, introduced by the Appellant as Exhibit
A-3, is a Judgment of the Ontario Court (General Division), dated January 13,
1997 and on the front of it says:
THIS MOTION made by the parties for
Judgment in accordance with Minutes of Settlement.
[10] The Court also cited the statutes upon which it
was relying. In Exhibit A‑3, page 2 of the Judgment, more
importantly, it says:
THIS COURT
ORDERS pursuant to the Family Law Act that spousal support shall be paid
or payable on the following terms:
a. Subject
to what is set out below, the obligation of the defendant to pay the plaintiff spousal
support shall terminate as of January 1, 1997.
[11] That Order has not been struck down and no application has been made
to have it struck down. Whether the Appellant can still do it or not is another
question, not for this Court. If the Appellant had any argument about the
correctness of that Order, he should have appealed that Order.
[12] This Court has no jurisdiction to strike down that Order. See R. v.
Wilson, [1983] 2 S.C.R. 594:
It has long been a fundamental rule
that a court order, made by a court having jurisdiction to make it, stands and
is binding and conclusive unless it is set aside on appeal or lawfully quashed.
That is the Order
that the Appellant is talking about here that was made on
January 13, 1997. If he wishes to strike that down, he will have to
make application to a Court of competent jurisdiction. This Court is not that Court.
[13] Again, in R. v. Wilson, supra:
It is also well settled in the
authorities that such an order may not be attacked collaterally and a collateral
attack may be described as an attack made in proceedings other than those whose
specific object is the reversal, variation, or nullification of the order or
judgment.
[14] That is what Mr. Yourkin would have to do, to make an application
before a court of competent jurisdiction to strike down the order that he is
complaining about. His argument is that the order is not in accordance with the
Minutes of Settlement because he did not sign them, but the judgment itself,
which I cannot go behind on the basis of that Supreme Court of Canada decision,
sets out quite clearly that it was in accordance with the Minutes of Settlement
and that it was by consent, both of those things Mr. Yourkin argues against.
[15] Consequently, the end result is that the Court will have to dismiss
these appeals and confirm the Minister’s assessment on both basis, one on the
issue of res judicata and secondly on the merits of the case.
Signed at New
Glasgow, Nova Scotia, this 21st day of January 2009.
“T. E. Margeson”
Email this Content