Date: 20061129
Docket: T-1188-06
Citation: 2006
FC 1442
Ottawa, Ontario, November 29, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
BRIAN
AIRTH
Applicant
and
THE
MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR ORDER AND ORDER
[1]
The Court
had before it two motions. The first was by the Respondent seeking to strike
the Notice of Application for Judicial Review because it was filed outside the
thirty (30) days stipulated in s. 18.1(2) of the Federal Courts Act. The
second was by the Applicant for an extension of time for filing the same Notice
of Application for Judicial Review. By agreement of the parties, the second
motion was adjourned until the Court dealt with the first motion.
[2]
The case
stems from and is part of 42 Requests for Information (RFIs) issued against
individuals or corporations in some manner related to the Hell’s Angels
Motorcycle Club (Hell’s Angels). There are potentially 42 judicial reviews to
be determined which have now been consolidated.
[3]
There is
no doubt that the judicial review application was filed more than 30 days after
the sending of the RFIs.
[4]
Neither
this Applicant nor the others, except in limited instances, complied with the
RFIs.
[5]
The narrow
issue on this motion is whether the subject matter of the judicial review is a
“decision or order” to which the 30-day rule applies or a “matter” to which the
30-day time limit does not apply.
[6]
The
Respondent says that the nature of the judicial review can be taken from the
precise wording of the Notice of Application:
… the Respondent’s decision to serve on
the Applicant letters seeking to compel production of information (the
“Requirements”), purportedly for purposes related to the administration or
enforcement of the Income Tax Act.
[7]
The
Applicant urges the Court not to be caught up in semantics, that counsel may
not have been as precise in drafting the Notice of Application (which can be
easily amended) and to look at the substance of the judicial review, an attack
on the Minister’s method of proceeding by way of RFIs.
[8]
In my
view, these are early days in this proceeding and no affidavits crystallizing
the issues in dispute have been filed. However, when one looks at the grounds
for the application, it is replete with matters between the Canada Revenue
Agency, the RCMP and the Vancouver Police, the use to be made of the
information demanded, the purposes of the Minister, the alleged breaches of the
confidentiality provisions of the Income Tax Act, the plans and actions
of the federal officials and the breaches of Charter rights flowing from
this conduct.
[9]
It is
evident that the attack in this judicial review is not just on that singular
decision to send an RFI. That decision is one part of a course of conduct, all
of which the Applicant challenges.
[10]
In
accordance with Krause v. Canada (C.A.), [1999] 2 F.C. 476, [1999]
F.C.J. No. 179 (QL), this is the type of proceeding which is a judicial review
of “a matter”.
[11]
In
reaching this conclusion to dismiss this motion to strike, I am also cognizant
of the decision in Pharmacia Inc. v. David Bull Laboratories (Canada) Inc., [1994] F.C.J. No. 2076 (QL)
that motions to strike should only granted when the judicial review is bereft
of any possibility of success. Particularly telling is this comment:
Such cases must be very exceptional and
cannot include cases such as the present where there is simply a debatable
issue as to the adequacy of the allegations in the notice of motion.
[12]
To the
extent that judicial economy is a factor in this decision, I can see no
advantage to striking this judicial review only to have the very same conduct
come back before this Court when some next step is taken as a result of the
RFIs.
[13]
In
reaching this conclusion to dismiss the motion, it is acknowledged that these
are early stages in this proceeding. Therefore, this decision is without
prejudice to the ability of the judge hearing this judicial review to consider
the matter afresh, which is the usual and preferred way to attack deficiencies
in a notice of application for judicial review.
[14]
The
parties all recognize that these 42 judicial reviews may become complex and
difficult to manage. Therefore, these consolidated proceedings should be put
under case management. This may be an appropriate instance for the case
management judge assigned to also hear the judicial review on the merits with a
prothonotary assigned to assist the judge and to deal with any matters which
could adversely affect the judge’s ability to hear the matter.
[15]
Therefore,
this motion to strike is dismissed with costs.
ORDER
IT IS ORDERED THAT this motion to strike
is dismissed with costs.
“Michael
L. Phelan”
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