Date: 20030220
Docket: T-1706-01
Neutral citation: 2003 FCT 205
Montréal, Quebec, February 20, 2003
Before: Richard Morneau, prothonotary
BETWEEN:
ÉRIC MILLETTE
Plaintiff
and
THE MINISTER OF NATIONAL REVENUE
and
CANADA CUSTOMS AND REVENUE AGENCY
and
GEORGES CLOUTIER, in his capacity as Director of
the Taxation Services Office, Laval district
of the Canada Customs and Revenue Agency
Defendants
REASONS FOR ORDER AND ORDER
[1] This is a motion by Her Majesty the Queen ("the Queen") to strike the application for judicial review ("the application") filed by the plaintiff on or about September 27, 2001.
Facts
[2] It appeared that on January 24, 2003, the plaintiff paid the total amount of the unpaid tax balance owed by his father Régent Millette. In so doing, he extinguished his own debt to the Queen, or the Canada Customs and Revenue Agency ("the Agency").
[3] At this time, the plaintiff owes the Agency nothing.
[4] Consequently, the Agency issued a release for all legal hypothecs guaranteeing the debt of Éric Saulnier-Millette, taken on the following immovable property:
I) 693 chemin Schweitzer in Sutton;
ii) 6745-6747 rue Boyer in Montréal;
iii) 1201-1211 rue Jean-Talon Est and 7155 rue de la Roche in Montréal;
iv) 875-895 avenue Sainte-Anne in Saint-Hyacinthe.
[5] The conclusions sought by the plaintiff in his application of September 27, 2001, amounted for all practical purposes and essentially to the Agency accepting as sufficient security the legal hypothecs obtained by it on the immovable property listed above.
[6] The conclusions of the application read as follows:
[TRANSLATION]
(a) Declare that in view of the registration of certificates on the plaintiff's immovable property at 693 chemin Schweitzer, in Sutton, 6745-6747 rue Boyer in Montréal, 1201-1211 rue Jean-Talon Est in Montréal and 875-895 ave Ste-Anne in St-Hyacinthe ("the immovable property") amounting to legal hypothecs resulting from a judgment, the Minister of National Revenue and the CCRA have security provided by the plaintiff while the appeal of an assessment is pending for payment of the amount at issue, as required under s. 220(4.1) I.T.A.;
(b) Declare that the Minister of National Revenue and the CCRA have unlawfully refused or neglected, or are still refusing or neglecting, to accept the legal hypothecs encumbering the immovables as valid security provided by the plaintiff while the appeal of an assessment is pending, for payment of the amount at issue, as required under s. 220(4.1) I.T.A.;
(c) Order the defendants to accept, within 10 days of the judgment to be rendered or any other deadline the Court shall consider appropriate, the legal hypothecs encumbering the immovables belonging to the plaintiff as valid security provided by the taxpayer while the appeal is pending for payment of the amount at issue;
(d) Order the defendants to cease all recovery measures against the plaintiff taken or in process and, in particular, but without limiting the foregoing, taking the recovery measures mentioned in s. 225.1 I.T.A.;
(e) Prohibit the defendants from undertaking any recovery measure whatever against the plaintiff, and in particular, but without limiting the foregoing, taking the recovery measures mentioned in s. 225.1 I.T.A.;
(f) Make an order pursuant to s. 18.2 of the Federal Court Act prohibiting the defendants, until a final decision is rendered on this application, from taking any recovery measures whatever against the plaintiff, and in particular but without limiting the foregoing, the recovery measures mentioned in s. 225.1 I.T.A.;
(g) Order provisional execution notwithstanding appeal;
(h) Order the defendants to pay costs on the instant motion;
(i) Make any other order this Court shall consider useful or necessary . . .
(My emphasis.)
Analysis
[7] To the extent that the plaintiff's debt was extinguished by its payment in full, it necessarily and clearly follows that the legal hypothecs held by the Agency are no longer valid and had to be released. Consequently, any application to compel evaluation of these hypothecs and their acceptance in return becomes void.
[8] As a result, apart from the passage in conclusion (b) underlined in paragraph [6] above, the conclusions or remedies sought by the plaintiff in his application fall to the ground.
[9] As regards this conclusion by the plaintiff, to [TRANSLATION] "Declare that the Minister of National Revenue and the CCRA have unlawfully refused or neglected" (the remaining conclusion), it seems clear that the purpose of this conclusion is to object to unnecessary stubbornness by the Agency, in short fault, which the plaintiff described as follows in paragraphs 12 to 14 of the affidavit he submitted against the motion at bar:
[TRANSLATION]
12. The defendants have always refused to agree to my requests and those of my counsel for a halt to collection measures, in view of the sufficient security held, while an appeal on my assessment is pending;
13. In view of the scope of the collection measures and the consequences resulting therefrom, I have been obliged to sell immovable property to pay the balance claimed by the defendants;
14. The defendants cannot now benefit from their reprehensible actions, which this Court will have to determine, having put me in a position so that I had no other choice but to pay them, and argue that once the total payment was made no issue existed . . .
[10] The determination of the remaining conclusion in an application for judicial review would not give the plaintiff any specific and practical result, since at most it could only be a "declaration". For the plaintiff to obtain any practical remedy for what may be described as the alleged fault, it seems to me that he should bring an action for damages within the prescription deadlines authorized. In such an action, the factual situation which the plaintiff seeks to object to will necessarily be reviewed.
[11] In Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at 353, it states:
The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice.
(My emphasis.)
[12] Further, for the reasons submitted by the Queen in her written observations in support of this motion, there is no basis here for the Court to exercise its discretion to hear the plaintiff's application anyway.
[13] The argument raised by the plaintiff in his application as filed has become moot, and on this basis the Court must allow the Queen's motion and strike this application, without costs (although the Queen requests costs in her written submissions, there is no mention of them in her notice of motion).
[14] Additionally, in his memorandum filed in support of his record under Rule 309 - and not in his notice of application under Rule 301 - the plaintiff sought new conclusions from the Court.
[15] Those conclusions read as follows:
[TRANSLATION]
(b) Declare the method of calculation used by the defendants in the instance case to be unlawful and incorrect;
(c) Declare that the defendants have collected an overpayment from the plaintiff of $120,518.79;
(d) Order the defendants to repay the plaintiff the sum of $120,518.79 within five days, with interest at the legal rate from the negotiation of the amounts overpaid;
(e) Determine the proper method of calculation for arriving at the balance owed by the plaintiff . . .
[16] These conclusions, which are in the nature of recovery of a payment made by mistake, as mentioned earlier, are new and involve a new cause of action. They cannot benefit from Rule 201 in an application for judicial review, as Rule 169 makes Rule 201 inapplicable to applications for judicial review.
[17] If this recovery of an amount paid by mistake could be sought by application for judicial review - and not by an action - the plaintiff would first have to proceed by a motion for an extension of time under s. 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F-7, since in the circumstances any calculation by the Agency necessarily dates from more than 30 days previously.
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"Richard Morneau"
Prothonotary
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
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FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030220
Docket: T-1706-01
Between:
ÉRIC MILLETTE
Plaintiff
and
THE MINISTER OF NATIONAL REVENUE
and
CANADA CUSTOMS AND REVENUE AGENCY
and
GEORGES CLOUTIER, in his capacity as Director of the Taxation Services Office, Laval district of the Canada Customs and Revenue Agency
Defendants
REASONS FOR ORDER
AND ORDER
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FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: T-1706-01
STYLE OF CAUSE: ÉRIC MILLETTE
and
THE MINISTER OF NATIONAL REVENUE
and
CANADA CUSTOMS AND REVENUE AGENCY
and
GEORGES CLOUTIER, in his capacity as Director of the Taxation Services Office, Laval district of the Canada Customs and Revenue Agency
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 10, 2003
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
DATED: February 20, 2003
APPEARANCES:
Éric Millette for the plaintiff
Claude Bernard for the defendants
SOLICITORS OF RECORD:
Morris Rosenberg for the defendants
Deputy Attorney General of Canada
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