Docket: 2006-2427(GST)G
BETWEEN:
MICHAEL KION AND PETRA
KION,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Motion heard together with Michael Kion 2006-2430(IT)G
and Petra Kion 2006-2434(IT)G on August 28, 2008
at Vancouver, British Columbia.
Before: The Honourable Justice B. Paris
Appearances:
|
Agent for the
Appellant:
|
Michael Kion
|
|
Counsel for the
Respondent:
|
David Everett
|
____________________________________________________________________
ORDER
Upon
motion by the Appellant for an Order vacating the reassessments under appeal;
Upon
reading the affidavits of Kitty Wong, Michael and Petra Kion, filed, and upon
hearing what was alleged by the parties;
The
motion is dismissed in accordance with the attached Reasons for Order and one
set of cost is awarded to the Respondent.
Signed at Ottawa, Canada,
this 17th day of September 2008.
“B.Paris”
Citation: 2008 TCC 516
Date: 20080917
Dockets: 2006-2434(IT)G
2006-2430(IT)G
2006-2427(GST)G
BETWEEN:
PETRA
KION
MICHAEL KION
MICHAEL KION AND PETRA
KION,
Appellants,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Paris, J.
[1]
These reasons will
apply to each of the motions brought by the Appellants in these three appeals.
In each case the Appellants are seeking a determination of the issues set out
in paragraph b) of each Amended Notice of Motion, as follows:
i) whether or not persons employed by CCRA
as an Auditor or as an Appeals Officer are required by law to have a valid oath
of office;
ii) where a person claiming to be an Auditor
or an Appeals Officer is found to have been lacking a valid oath of office
while dealing with a particular taxpayer purportedly as a CCRA Auditor or
Appeals Officer, whether or not the lack of an oath of office affects that
person’s immunity from civil liability to a taxpayer for any damages suffered
by the taxpayer as a result of actions taken by that person, and if so, how and
to what extent;
iii) upon discovery of the fact that a
particular employee of CCRA who claimed to have been an Auditor or an Appeals
Officer lacks a valid oath or office when such a person was required to have
taken such an oath, what is the legal effect of that discovery in respect of
their past actions taken under the pretense that the person was duly authorized
to exercise, administer, or enforce various statutory powers, provisions, and
obligations upon other persons and individuals;
iv) where circumstantial or contested
information is obtained by CCRA and is presumed to be that of a particular
taxpayer by a person lacking a valid oath of office, is the Minister of
National Revenue entitled to retain and rely upon such information after it is
discovered that the person who obtained it lacked a valid oath of office (i.e.
was the information improperly obtained?);
v) where a person lacking a valid oath of
office uses circumstantial or contested information, which that person presumed
to be that of a particular taxpayer, to make conclusions of law and/or mixed
fact and law under various sections of the Income Tax Act and the Excise Tax
Act, Part IX (GST), to impose financial penalties and obligations on a
particular taxpayer, is the Minister of National Revenue entitled to continue
to rely upon such conclusions and to maintain that the financial obligations
and penalties continue to apply after it is discovered that the person who made
said conclusions lacked a valid oath of office;
[2]
Based on that
determination, they ask for an Order vacating the reassessments under appeal
and an Order for the removal of liens placed by the Canada Revenue Agency (“CRA”)
against properties presumably belonging to the Appellants. Alternatively the
Appellants ask the Court for an Order to provide the Appellants with any remedy
that is equitable under the circumstances. In the Amended Notices of Motion,
the Appellants also raised the issue of further discoveries of CRA officers,
but this claim for relief was abandoned at the hearing of the motion.
[3]
The Respondent opposes
the motions on the grounds that the Court lacks jurisdiction to grant the
relief sought either because the Court cannot grant declaratory relief or
because the Court may only order that assessments be vacated or varied after
consideration of the correctness of the assessments.
[4]
Central to the
Appellants’ position in these motions, it is their contention that certain
persons employed by the CRA, who were involved in the audit leading up to the
reassessments, in issue or in the review of the Appellants’ objection to those
reassessments lacked authority to carry out any official duties on behalf of
the Minister of National Revenue (“Minister”) because they had not sworn an
oath of office as required by federal statute.
[5]
The facts underlying
this position are not admitted and would require determination by this Court.
Likewise any consequence of the individuals’ alleged lack of oath of office would
also need to be determined by the Court in order to rule on the relief sought
by the Appellants.
[6]
In my view, the proper
procedure for seeking a determination of these questions of fact and law would
be by application under subsection 58(1) of the Tax Court of Canada Rules
(General Procedure) for determining or determinations of questions of fact,
law or mixed fact and law.
[7]
That provision reads as
follows:
Question of Law, Fact or Mixed Law and Fact
58. (1) A party may apply to the Court,
(a) for the determination, before hearing, of a question of
law, a question of fact or a question of mixed law and fact raised by a
pleading in a proceeding where the determination of the question may dispose of
all or part of the proceeding, substantially shorten the hearing or result in a
substantial saving of costs, or
(b) to strike out a pleading because it discloses no
reasonable grounds for appeal or for opposing the appeal,
And the Court may grant judgment accordingly.
[8]
The Appellants, who are self‑represented,
have not framed their applications in terms of subsection 58(1) of the Rules
but this alone should not be a bar to a consideration of the motions where it
is apparent which section of the Rules is properly applicable.
[9]
However, in this instance the requirements
of subsection 58(1) have not been met since the questions that the
Appellants seek to have determined are not ones that are raised in the
pleadings of either party.
[10]
According to the Federal Court of
Appeal decision in The Queen v. Norman Jurchison and Norway Insulation
Inc., 2001 DTC 5301, at para. 9, this Court does not have authority
pursuant to section 58 of the Rules to determine questions of fact
or law that are not raised in the pleadings of either party.
[11]
I am unable to find any other
specific provision in the Rules that would permit me to make the
determinations sought by the Appellants. Given that the matter of
determinations of fact and law are dealt with explicitly in section 58, I
do not believe it is appropriate to have recourse to the inherent jurisdiction
of the Court. In any event, no basis for doing so in this case has been
suggested.
[12]
The Appellants referred the Court
to section 12 of the Tax Court Canada Act as conferring authority
on the Court to make the determinations of fact and law that they seek.
[13]
That provision gives the Court
exclusive original jurisdiction to hear and determine references and appeals to
the Court under a number of Federal Acts including the Income Tax Act
and the Excise Tax Act. However, the hearing and determination of
appeals in the general procedure are to be carried out in accordance with the Rules,
which again in this case make specific provision for determinations of fact and
law.
[14]
Given that the relief sought by the
Appellants is predicated entirely upon the Court making the determinations described
in paragraph b) of the Amended Notice of Motion and given my finding that I do
not have authority to make those determinations, I am unable to grant the
Appellants’ motion.
[15]
Furthermore, to the extent that
the CRA officers alleged lack of authority would affect the admissibility
evidence in these appeals, the matter is something better dealt with at the
hearing of the appeals. In Jurchison, the Federal Court of Appeal said
at paragraph 10:
[10] Normally,
the admissibility of evidence is a matter best left to the Trial Judge who,
having all the circumstances and evidence before him can make the most informed
decision. Of course, there are situations such as that before Bowman J. in O’Neill
Motors Ltd. v. The Queen, 96 DTC 1486, which particularly lend themselves
to such determination before trial. It must be kept in mind, however, that in
that case, the question to be determined came before the Court by agreement of
the parties under section 173 of the Income Tax Act which provides
for determination of questions of law, fact or mixed law and fact upon
agreement between the Minister and the taxpayer. Unlike the present case, there
was an agreed statement of fact by the parties.
[16]
It is also clear that the Court
does not have the power to grant part of the relief sought, being an Order that
the Minister remove liens placed on the Appellants’ property. Collection
matters are outside the jurisdiction conferred by section 12 of the Tax
Court of Canada Act.
[17]
The motions are therefore
dismissed with one set of costs to the Respondent, in any event of the cause.
Signed at Ottawa, Canada, this 17th day of
September 2008.
“B.Paris”
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