Nelson v. Canada, 2003 FCA 127

Date: 20030311

Docket: A-88-02

Neutral citation: 2003 FCA 127

CORAM:        ROTHSTEIN J.A.

NOËL J.A.

SHARLOW J.A.

BETWEEN:

THE HONORABLE ROBERT H. NELSON

FOUNDER PRESIDENT OF PUBLIC DEFENDERS FOR

HIMSELF AND AS REPRESENTATIVE OF ALL THOSE

ALSO IMPROPERLY DENIED BENEFITS

                                                                                                                                                       Appellant

and

HER MAJESTY THE QUEEN

AS REPRESENTED BY THE HON. MARTIN CAUCHON MINISTER

OF CANADA CUSTOMS AND REVENUE AGENCY

Respondent

                                              Heard at Ottawa, Ontario, February 18, 2003

                                     Judgment delivered at Ottawa, Ontario, March 11, 2003

REASONS FOR JUDGMENT BY:                                                                               SHARLOW J.A.

CONCURRED IN BY:                                                                                                   ROTHSTEIN J.A.

                                                                                                                                                     NOËL J.A.

Date: 20030224

Docket: A-88-02

Neutral citation: 2003 FCA 127

CORAM:        ROTHSTEIN J.A.

NOËL J.A.

SHARLOW J.A.

BETWEEN:

THE HONORABLE ROBERT H. NELSON

FOUNDER PRESIDENT OF PUBLIC DEFENDERS FOR

HIMSELF AND AS REPRESENTATIVE OF ALL THOSE

ALSO IMPROPERLY DENIED BENEFITS

                                                                                                                                                       Appellant

and

HER MAJESTY THE QUEEN

AS REPRESENTED BY THE HON. MARTIN CAUCHON MINISTER

OF CANADA CUSTOMS AND REVENUE AGENCY

Respondent

                                                        REASONS FOR JUDGMENT

Sharlow J.A.

[1]                 This is an appeal from the order of Justice Blais made on January 23, 2002 pursuant to section 40 of the Federal Court Act, R.S.C. 1985, c. F-7 on the application of the Crown. The order requires Mr. Nelson to obtain leave to institute any proceedings in this Court or to continue any of the appeals now outstanding. The Crown was awarded costs of $800 on the motion, payable forthwith. The decision is reported as Nelson v. Canada (Minister of Customs and Revenue Agency), [2002] 2 C.T.C. 79 (F.C.T.D.).

[2]                 Section 40 reads as follows:

[3]                 I summarize as follows the history of these proceedings and other proceedings in this Court to which Mr. Nelson is a party. This summary is derived from the documents appended to the affidavit of Donnaree Nygard dated November 2, 2001.

[4]                 Mr. Nelson appealed his 1984 income tax assessment to the Tax Court. His appeal was dismissed on July 16, 1988. On January 22, 1996, Mr. Nelson commenced an action in the Trial Division (Action 96-T-5) to seek an extension of time to appeal the Tax Court decision. The affidavit filed in support of his motion alleged corruption on the part of the Crown, an official of Revenue Canada, and Crown counsel. This was apparently based on the fact that Mr. Nelson was unable to obtain access to certain documents at the offices of Revenue Canada, and was unable to persuade the Crown to settle his claims.

[5]                 The hearing of the motion was adjourned by Prothonotary Hargrave to permit Mr. Nelson to file a supplemental affidavit. He filed an amended notice of motion and a new affidavit, this time alleging prejudice on the part of Prothonotary Hargrave. He sought, in addition to the extension of time, an order permitting him to examine two individuals for discovery on a specified date, a settlement conference and an order for a court reporter. He also wished to have his motion heard by someone other than Prothonotary Hargrave.

[6]                 By order dated April 18, 1996, Prothonotary Hargrave denied the motion for an extension of time on the basis that the delay was not explained and the material filed by Mr. Nelson disclosed no basis for appealing the Tax Court decision: Nelson v. Canada (1996), 111 F.T.R. 214, 96 D.T.C. 6302. Mr. Nelson appealed that order. His appeal was dismissed by Justice Campbell on July 9, 1996. That disposed of action 96-T-5.

[7]                 Mr. Nelson was also reassessed for income tax for the years 1985 to 1987. He appealed to the Tax Court. By order dated February 28, 1995, his appeals were dismissed. Mr. Nelson then commenced Action T-1285-95 to appeal the decision of the Tax Court for those years. The appeal as originally framed was based solely on allegations of corruption against an official of Revenue Canada and counsel for the Department of Justice.

[8]                 The Crown moved to have the pleadings struck as disclosing no reasonable cause of action, or alternatively as being scandalous, frivolous, vexatious or otherwise an abuse of the process of the Court. The motion resulted in the order of Prothonotary Hargrave dated August 21, 1995 striking all but the first paragraph, with leave to amend within 30 days. An amended statement of claim was filed on September 11, 1995.

[9]                 On October 20, 1995, Mr. Nelson filed a notice of motion in T-1285-95 seeking a settlement conference, an order for an examination for discovery of Crown counsel, and an appointment of different Crown counsel. He repeated his allegations of corruption against the same Revenue Canada official and Crown counsel. In an order dated November 20, 1995, Prothonotary Hargrave dismissed all of the motions, noting among other things that the request for a settlement conference was premature and that there was no basis for removing Crown counsel.

[10]            On January 2, 1996, Mr. Nelson filed a notice of motion in T-1285-95 seeking a stay of collection action in relation to his tax debts, the release of certain information, an order for examination for discovery of the Revenue Canada official who was the subject of his allegations of corruption, and an order for a settlement conference. He again repeated his allegations of corruption. He also indicated his intention to subpoena the then Minister of National Revenue, Crown counsel and certain Revenue Canada officials. By order dated January 26, 1996, Prothonotary Hargrave dismissed his motions. He noted that the parties had agreed to the conduct of an examination for discovery of the Revenue Canada official.

[11]            On February 16, 1996, Mr. Nelson applied for an extension of time to appeal the January 26, 1996 order of Prothonotary Hargrave. The affidavit filed in support of that application repeats the allegations of corruption he had made many times before. Mr. Nelson also expanded the list of intended recipients of subpoenas to include a long list of Ministers, Members of Parliament, and Revenue Canada officials. The motion was adjourned. Mr. Nelson filed an amended notice of motion requesting the same relief, asking for the motion to be heard by someone other than Prothonotary Hargrave, and asking for a court reporter. By order dated April 18, 1996, Prothonotary Hargrave denied all motions, except the motion for a court reporter, who was to be present at Mr. Nelson's cost. The Crown was awarded costs in any event of the cause. Prothonotary Hargrave said that some of the motions were completely unnecessary, and that some of his presentation and material were unnecessarily abusive toward Crown counsel. The reasons for that order are reported as Nelson v. Canada (1996), 112 F.T.R. 241. Mr. Nelson appealed the order. His appeal was dismissed on July 8, 1996 by Justice Campbell. On October 21, 1996, Mr. Nelson's action in T-1285-95 was dismissed upon Mr. Nelson's motion.

[12]            On February 1, 2000, the Appellant commenced an action (T-174-00) against the Canada Customs and Revenue Agency declaring himself to be "Chief Judge of the International Court of Truth", and claiming damages and various declarations. It appears that the basis of the claims were steps taken by the Crown to collect tax debts.

[13]            On May 29, 2000, Mr. Nelson commenced an action (T-942-00) against the Crown, styling himself "Founder President of Public Defenders for himself and as representative of all those improperly denied benefits". This is the action in respect of which Justice Blais made the order now under appeal. The statement of claim alleges forgery and other criminal acts by Crown officials in relation to the collection of tax debts.

[14]            Mr. Nelson has filed numerous interlocutory motions in these two actions. Many were obviously premature when filed. Many are duplicative and thus pointless. Substantially all of them have been found to be without merit (there are eight outstanding interlocutory appeals). The following table summarizes the history of the two actions:

[15]            As the foregoing summary discloses, eight of Mr. Nelson's unsuccessful interlocutory motions are now under appeal in this Court (A-283-01, A-284-01, A-379-01, A-380-01, A-503-01, A-504-01, A-505-01, A-570-01).

[16]            On October 18, 2001, Justice Rouleau made an order on the Crown's application dismissing T-942-00 on the basis that the statement of claim discloses no reasonable cause of action, is scandalous, frivolous or vexatious, and is otherwise an abuse of the process of the Court. His order also prohibited Mr. Nelson from filing any documents in T-942-00 for a period of 60 days. It permitted Mr. Nelson to appeal his order, and required the Crown to bring an application under section 40(2) of the Federal Court Act within 60 days. His reasons are reported as Nelson v. Canada (Minister of Customs and Revenue Agency), 2001 D.T.C. 5644, [2002] 1 C.T.C. 66. An appeal of that decision is pending (A-634-01).

[17]            Mr. Nelson is the subject of a vexatious litigant order in British Columbia. A copy of the order appears in the record.

[18]            The Crown's application under section 40 of the Federal Court Act came before Justice Blais. The issue in this appeal is whether the decision of Justice Blais is based on an error of law or a misapprehension of the facts that is sufficiently serious to warrant interference by this Court.

Motion for new evidence

[19]            Mr. Nelson filed a motion, to be heard at the beginning of the hearing of the appeal, permitting him to adduce evidence on appeal pursuant to Rule 351. The material consists of documents recently obtained by Mr. Nelson pursuant to an application under the Privacy Act.     Decision on the motion was reserved.

[20]            Generally, new evidence will not be admitted on appeal if it is evidence that could, with diligence, have been presented in the Court below. In this case, counsel for the Crown acknowledged that Mr. Nelson did not have these documents in time to put them before Justice Blais. Therefore, they should be accepted at this stage if they are practically conclusive of the issue on appeal, or there is some other reason to conclude that the interests of justice require that they be admitted.

[21]            The main fact that Mr. Nelson is trying to prove with these documents is that he does not owe the tax debts the Crown claims, and that the Canada Customs and Revenue Agency is aware that he has deductible losses from recent taxation years that could be applied to reduce his tax debts, but they have wrongly refused to make the appropriate adjustments. I see nothing in these documents that is relevant to the question of whether or not Mr. Nelson has conducted himself in proceedings in this Court in a manner that justifies an order against him under section 40 of the Federal Court Act. Therefore, I must conclude that there is no reason to admit them in this appeal. The motion to admit new evidence should be denied.

Arguments on the appeal

[22]            Mr. Nelson argues that an order under section 40 of the Federal Court Act must be made on the basis of an originating application, not an interlocutory motion as was done here. There is no merit to that argument. Section 40 of the Federal Court Act simply refers to an "application". That term is sufficiently broad to include originating applications and motions.

[23]            Mr. Nelson also argues that Justice Blais should have required oral argument on the motion rather than dealing with it under Rule 369 on the basis of written representations, as the Crown had requested in its notice of motion. In the material Mr. Nelson filed in response to the Crown's motion, he indicated that he wished to have an oral hearing. Generally, a motion submitted for consideration under Rule 369 will be dealt with on that basis unless the Judge is persuaded that the matter requires an oral hearing. The only reason Mr. Nelson gave for requesting an oral hearing was that he wished to cross-examine Ms. Nygard on her affidavit (referred to above) and counsel for the Crown. However, counsel for the Crown did not submit an affidavit, so there was nothing to cross-examine him on. And the only facts stated in Ms. Nygaard's affidavit that are relevant to the Crown's section 40 motion are unchallenged facts about the conduct of Mr. Nelson in the Court proceedings. Mr. Nelson did challenge some statements in Ms. Nygaard's affidavit relating to whether he has paid certain court ordered costs, but the evidence he submitted to establish that he had in fact paid the costs, which he recounted in his oral presentation on this appeal, is not conclusive on that point. In my view, Justice Blais did not err in dealing with the Crown's motion under Rule 369.

[24]            The remainder of Mr. Nelson's arguments are based on allegations that his tax debt is not what the Crown claims it is, that the Crown has wrongfully refused to process adjustments in this favour to which he is entitled, and that the Crown has taken unlawful steps to collect the tax debts. The record discloses no evidence that proves these allegations. Even if there is merit to these allegations, they cannot justify the use of abusive tactics in proceedings in this Court.

[25]            The history of Mr. Nelson's proceedings provides ample evidence that Mr. Nelson has chosen to pursue his claims against the Crown in an abusive manner. Justice Blais did not err in any respect in making the order under appeal.

[26]            This appeal should be dismissed with costs fixed at $3,500 payable forthwith.

"K. Sharlow"

J.A.

"I agree - Marshall Rothstein J.A."

"I agree - Marc Noël J.A."

                                                    FEDERAL COURT OF APPEAL

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

HEARING OF THE APPEAL FROM THE ORDER OF THE TRIAL DIVISION DATED JANUARY 23, 2002, IN DOCKET T-942-00.

DOCKET:                                             A-88-02

STYLE OF CAUSE:                           The Honourable Robert H. Nelson Founder President of            Public Defenders for himself and as representative of all those also improperly denied benefits

v.

Her Majesty the Queen as represented by the Hon. Martin Cauchon Minister of Canada Customs and Revenue Agency

PLACE OF HEARING:                     Ottawa, Ontario

DATE OF HEARING:                       February 18, 2003

REASONS FOR JUDGMENT BY:                                       Sharlow J.A.

CONCURRED IN BY:                     Rothstein, Noël J.J.A

DATED:                                                March 11, 2003

APPEARANCES:

Mr. Robert H. Nelson                                                                  ON HIS OWN BEHALF

Mr. Robert Carvalho                                                                      FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. Robert H. Nelson                                                                  ON HIS OWN BEHALF

Kelowna, B.C.

Mr. Morris Rosenberg                                                                  FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario