Date: 20060120
Docket: T-990-05
Citation: 2006 FC 56
BETWEEN:
BARRY JOHN WALSH, PAUL WALSH, FRANCIS WALSH,
1327827 ONTARIO LTD. and 1297190 ONTARIO LTD.
Applicants
- and -
MINISTER OF NATIONAL REVENUE, A. FRASER,
and HER MAJESTY THE QUEEN
Respondents
REASONS FOR ORDER
(Delivered from the Bench in Toronto, Ontario
on January 19, 2006)
HUGESSEN J.
[1] The respondent, Attorney General of Canada, brings this motion to strike the application for judicial review for want of jurisdiction.
[2] It is not disputed that lack of jurisdiction is a proper basis for such a motion even under the restrictive rule first laid down by the Court of Appeal in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., (C.A.),[1995] 1 F.C. 588, 58 C.P.R. (3rd) 209.
[3] I set out here the relief sought by the applicants in their application for judicial review:
a) a declaration that:
i) the "reassessments", and decision to issue these reassessments in question, is outside the proper statutory scope of the Income Tax Act and based on mala fides, public misfeasance, and abuse of process and authority;
ii) The "reassessments", and decision to issue those reassessments constitutes flagrant constitutional breaches in that it:
A. constitutes abuse of process contrary to s.7 of the Charter and s.1 of the Canadian Bill of Rights;
B. constitutes a flagrant violation of the Rule of Law and fundamental procedural justice contrary to s.7 of the Charter and s.1 of the Canadian Bill of Rights, as well as a breach of s.8 of the Charter;
C. flagrantly denies the Applicants' rights to a fair and independent judiciary as enshrined in the preamble to the Constitution Act, 1867;
And therefore constitutes a nullity ab initio;
iii) a further declaration that this decision to "reassess" and the reassessments, are a reaction, public misfeasance, abuse of process, and mala fides actions to a resistance by the Applicants to comply with the Respondents' improper requirements, the subject of judicial review in T-733-04, for the relief set out in T-733-04 namely that:
A. the requirements are outside the scope of s. 231 (1)(b) of the Income Tax Act and otherwise constitute an abuse of process at common-law and under ss.7 and 8 of the Charter and s. 1 of the Canadian Bill of Rights;
B. that the "requirements" constitute a "fishing expedition" contrary to the jurisprudence and s. 231.2(1)(b), the common-law, ss.7 and 8 of the Charter and s. 1 of the Canadian Bill of Rights;
C. that the requirements are void, ab initio, for failure to give reasons for the requirements;
iv) such further declaratory relief as the Applicants may seek and this Honourable Court grant;
b) an order (in the nature) of certiorari quashing the decision to "reassess" and an order quashing the reassessments;
c) a permanent, and interim, order (in the nature) of prohibition and/or a stay of the "reassessments" named in this notice until such time as this Court has dealt with this and parallel proceedings by way of action;
[4] Counsel for the applicants concedes that paragraphs B and C are outside the Court's jurisdiction in accordance with the consistent case law of this Court and the Court of Appeal in such cases as Optical Recording Corp. v. Canada, [1991]1 F.C. 309 (F.C.A.), Beaudry v. Canada (Customs and Revenue Agency), [2001] F.C.J. No. 1860, M.N.R. v. Parsons, [1984] 2 F.C. 331 (F.C.A.), Walker v. Canada, [2005] F.C.J. No. 1952 (F.C.A.) and Addison & Leyen Ltd. v. Canada, [2005] F.C.J. No. 516. He says, however, that the application is saved by paragraph A which seeks simple declaratory relief for matters which would be outside the jurisdiction of the Tax Court of Canada to grant on an appeal under the Income Tax Act.
[5] I disagree with respect. The only purpose which can be served by the declaratory relief set out in paragraph A is to serve as the foundation for the substantive relief, being the setting aside of the applicants' assessment for taxes, which is sought in paragraphs B and C. Even assuming, which I doubt, that a court might grant declaratory relief of the type sought for an alleged abuse of Charter rights in raising an Income Tax assessment, (the applicants' financial interests being all that is immediately at stake) such relief would be a meaningless exercise when divorced, as it must be, from the substantial question as to the validity of the assessment itself.
[6] The motion to strike will be allowed and the application for judicial review will be struck out, with costs.
"James K. Hugessen"
Ottawa, Ontario
Signed this 20th day of January 2006
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