Docket: 2008-2701(IT)G
BETWEEN:
WILLIAM JAMES LOUGHEED,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Respondent’s Motion to strike part of the
Notice of Appeal
heard on October 22, 2008 at St. Catharines, Ontario
Before: The Honourable
Justice G. A. Sheridan
Appearances:
|
For the Appellant:
|
The
Appellant himself
|
|
Counsel for the Respondent:
|
Laurent Bartleman
|
____________________________________________________________________
ORDER
Upon the Respondent having brought a motion pursuant
to section 53 of the Tax Court of Canada Rules (General Procedure) for
the striking out of certain paragraphs of the Notice of Appeal;
And having heard the submissions of the parties and
read the materials filed;
In accordance with the attached Reasons for Order, it
is ordered that:
1. the following paragraphs of the Notice of
Appeal shall be struck out:
(i) subparagraphs 2(c), (d), (f) and (g);
(ii) sections B, C, D, E, F, G,
H, and J under the heading “The Reasons for this Appeal are as follows”; and
(iii)
paragraphs 5, 6, 7, 8, 9, 10, 11,
12, 13, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34,
35, 37, 40 and 41.
2. the Respondent shall file its
Reply to the Notice of Appeal on or before the 19th day of December,
2008.
Signed at Ottawa, Canada, this 19th day of November, 2008.
“G. A. Sheridan”
Citation: 2008TCC632
Date: 20081119
Docket: 2008-2701(IT)G
BETWEEN:
WILLIAM JAMES LOUGHEED,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Sheridan, J.
[1] The Respondent
brings a motion pursuant to section 53 of the Tax Court of Canada Rules
(General Procedure) for an order striking out the following portions of the
Notice of Appeal:
(i)
subparagraphs 2(c), (d), (f) and
(g);
(ii)
sections B, C, D, E, F, G, H, and
J under the heading “The Reasons for this Appeal are as follows”;
(iii)
paragraphs 5, 6, 7, 8, 9, 10, 11,
12, 13, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34,
35, 37, 40 and 41;
[2] The grounds for
the Respondent’s motion are as follows:
1.
the impugned paragraphs may
prejudice or delay the fair hearing of this appeal;
2.
the impugned paragraphs are
scandalous, frivolous or vexatious;
3.
the impugned paragraphs are an abuse
of the process of the Court;
4.
among the relief sought by the
Appellant is seeking damages;
5.
pursuant to subsection 171(1) of
the Income Tax Act, the Court can dispose of an appeal by dismissing it,
allowing it and vacating the assessment, allowing it and varying the assessment
or allowing it and referring the assessment back to the Minister of National
Revenue for reconsideration and reassessment;
6.
this Honourable Court does not
have jurisdiction to award damages;
7.
the impugned paragraphs set out
the Appellant’s claim for damages and/or the facts which the Appellant wishes
to rely on to support his claim for damages;
8.
the impugned paragraphs do not
address the correctness of the assessment which was issued to the Appellant in
respect of his 2002 taxation year;
9.
sections 12, 44 and 53 of the Tax
Court of Canada Rules (General Procedure); and
10.
such further and other grounds as
counsel may submit and the Honourable Court allow.
[3] Briefly
summarized, the impugned paragraphs of the Notice of Appeal make allegations of
various kinds of wrongful behaviour against several individuals ranging from
Canada Revenue Agency auditors and assessment officers to the Minister of
National Revenue and the Department of Justice. The relief sought by the
Appellant for their alleged misconduct includes damages in the amount of
$1,000,000 for, among other things, “defamation, slander and libel” and costs
“on a substantial indemnity basis for Accounting Fees, Legal Fees and other
Disbursements incurred by the Appellant to mitigate Damages the Respondent’s
Representatives have caused the Appellant”.
[4] In his review of
the established jurisprudence, counsel cited Superior Filter Recycling Inc.
v. Canada, a decision
of the Federal Court of Appeal. In that case, the Court noted that “[f]undamentally
the appellant wishes to assert that it is entitled to have its appeals allowed
because of alleged flaws in the conduct of officials of the Canada Revenue
Agency during the objection process.” Many of the paragraphs in the Appellant’s Notice of
Appeal are devoted to similar concerns. The Federal Court of Appeal went on to
say:
The
jurisprudence is clear that the mandate of the Tax Court is to determine the
correctness of the assessments under appeal. No complaint about the conduct of
tax officials during the objection process is relevant to that determination: Main
Rehabilitation Co. Ltd. v. Canada, [2004] F.C.J. 2030, 2004
FCA 403 (leave to appeal to the Supreme Court of Canada dismissed) …; Webster
v. R. 2003 FCA 388 (F.C.A.) (leave to appeal to the Supreme Court of Canada
dismissed).
[5] The rationale
for this approach was explained by Sharlow, J.A. in the Webster decision
cited above:
8 The
authority of the Tax Court in income tax appeals is set out in subsection 171(1)
of the Income Tax Act, which reads as follows:
171. (1) The
Tax Court of Canada may dispose of an appeal by
(a) dismissing
it; or
(b) allowing
it and
(i) vacating the assessment,
(ii) varying
the assessment, or
(iii) referring the assessment back to the Minister for
reconsideration and reassessment.
…
21 I
would add that the right to appeal an income tax assessment to the Tax Court is
a substantial one. The mandate of the Tax Court is to decide, on the basis of a
trial at which both parties will have the opportunity to present documentary
and oral evidence, whether the assessments under appeal are correct in law, or
not. If the assessments are incorrect as a matter of law, it will not matter
whether the objection process was flawed. If they are correct, they must stand
even if the objection process was flawed. [Emphasis added.]
[6] The decisions of
the Federal Court of Appeal are binding on this Court. Accordingly, the following
portions of the Notice of Appeal which pertain to the alleged wrongful behaviour
of Canada Revenue Agency and Justice officials and the Minister himself are not
relevant to the matter of the correctness of the assessment under appeal and
must be struck out: sections B, C, D, E, F, G, H and J, and paragraphs 5, 6, 7,
8, 9, 10, 11, 12, 13, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29,
30, 31, 32, 34, 35, 37, 40 and 41.
[7] As for the
damages sought by the Appellant, counsel for the Respondent again cited a
decision of the Federal Court of Appeal, Swift v. Canada,
for the proposition that a claim for damages is not within the jurisdiction of
the Tax Court of Canada. Accordingly, the following portions of the Notice of
Appeal having to do with relief other than as set out in subsection 171(1) must
be struck out: subparagraphs 2(c), (d), (f) and (g).
[8] The Respondent
is also seeking an Order pursuant to sections 12 and 44 of the Tax Court of
Canada Rules (General Procedure) for an extension of time within which to
file its Reply to the Notice of Appeal. In these circumstances, such an Order
is justified.
[9] For the reasons
set out above, it is ordered that:
1.
the following paragraphs of the
Notice of Appeal shall be struck out:
(i) subparagraphs 2(c), (d), (f)
and (g);
(ii) sections B, C, D, E, F, G, H,
and J under the heading “The Reasons for this Appeal are as follows”; and
(iii) paragraphs 5, 6, 7, 8, 9, 10,
11, 12, 13, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32,
34, 35, 37, 40 and 41.
2. the Respondent shall file its
Reply to the Notice of Appeal on or before the 19th day of December,
2008.
Signed at Ottawa, Canada, this 19th day of November, 2008.
“G.A. Sheridan”
Email this Content