Giles
A.S.P.:—The
motion
before
me
by
the
Crown
is
for
an
order
pursuant
to
Rule
419(1
)(a)
striking
the
statement
of
claim
in
its
entirety.
The
Crown
moves
in
the
alternative
to
strike
those
portions
of
the
claim
which
appear
to
be
included
for
the
purposes
of
alleging
a
claim
against
Anton
Plas
personally.
In
his
responding
submissions,
the
plaintiff
has
not
addressed
the
submissions
of
the
Crown,
but
has
raised
what
I
consider
to
be
preliminary
objections
to
my
jurisdiction
and
to
the
disposition
of
this
matter
without
a
trial.
The
portions
of
the
plaintiff’s
submissions
relevant
to
the
preliminary
objections
read
as
follows:
He
states
that
this
motion
should
be
dismissed
for
the
following
reasons:
1.
The
Senior
Prothonotary
and
the
Associate
Senior
Prothonotary
have
no
jurisdiction
to
give
a
judgment
disposing
of
an
action
without
the
consent
of
the
plaintiff,
and
the
plaintiff
has
not
given
such
a
consent.
Rule
336(1
)(c)
of
the
Federal
Court
Rules.
2.
The
defendant
seeks
relief
that
can
only
follow
upon
judgment
at
trial.
The
Honourable
Mr.
Justice
J.
Jerome
A.C.J.
of
the
Federal
Court
of
Canada-
Trial
Division,
in
order
of
the
Court,
(rendered
from
the
Bench
at
Toronto
on
Monday
April
27,
1992)
in
the
motion
of
Hadi
Sarraf
in
his
capacity
as
a
director
of
495187
Ontario
Limited
at
the
time
of
its
dissolution
v.
Her
Majesty
the
Queen,
ordered
as
follows:
“This
application
seeks
relief
that
can
only
follow
judgment
at
trial.
It
is
clearly
beyond
the
scope
of
any
determination
this
Court
could
make
upon
motion.
Accordingly
it
must
be,
and
is
hereby
dismissed."
Order,
Federal
Court
of
Canada
(Trial
Division)
[not
attached]
Rule
336(1)
of
the
Federal
Court
Rules.
3.
The
Senior
Prothonotary
and
the
Associate
Senior
Prothonotary
have
no
jurisdiction
to
hear
and
dispose
of
this
interlocutory
motion.
Rule
336(1)(g)(1)
of
the
Federal
Court
Rules.
Rule
336(1
)(g)
provides
that
a
prothonotary
has
the
power
to
dispose
of
any
interlocutory
application
assigned
to
him
specially
or
to
any
prothonotary
by
special
or
general
direction
of
the
Chief
Justice
or
the
Associate
Chief
Justice.
By
a
general
direction
on
October
31,
1985,
the
Associate
Chief
Justice
empowered
the
Senior
Prothonotary
and
Associate
Senior
Prothonotary
to
hear
and
dispose
of
any
interlocutory
application
of
the
Trial
Division,
other
than
five
enumerated
types
of
application.
The
first
such
type
was
"any
application
which
by
law
may
be
heard
and
determined
only
by
a
judge
of
the
Court".
I
know
of
no
law
which
provides
that
a
motion
to
strike
can
be
heard
and
determined
only
by
a
judge
of
the
Court.
In
the
case
of
Iscar
Ltd.
v.
Karl
Hertel
GmbH,
[1989]
24
C.I.P.R.
202,
25
C.P.R.
(3d)
116
(F.C.T.D.),
it
was
specifically
pointed
out
that
a
prothonotary
has
jurisdiction
to
hear
and
decide
a
motion
to
strike.
The
order
of
the
Associate
Chief
Justice
was
made
in
response
to
an
interlocutory
application
for
an
order
for
repayment
of
certain
sums
before
the
issue
had
been
tried.
That
order
has
no
relevance
to
a
motion
to
strike
a
statement
of
claim
as
revealing
no
cause
of
action
and
particularly
a
statement
of
claim
filed
in
a
different
action.
It
is
my
view
that
these
preliminary
objections
cannot
succeed.
The
plaintiff’s
case
is
based
on
his
allegation
that
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act")
is
unconstitutional.
He
indicates
that
by
subsection
92
(2)
of
the
Constitution
Act
of
1867
denies
the
federal
government
the
right
to
raise
the
money
by
income
tax
which
is
a
form
of
direct
taxation.
The
apparent
inconsistency
between
subsections
92(2)
and
91(3)
has
been
raised
on
a
number
of
previous
decisions.
The
decision
in
R.
v.
Caron,
[1924]
4
D.L.R.
105,
[1924]
3
W.W.R.
417
(P.C.)
is
an
example
of
those
Court
decisions.
In
Caron,
supra,
the
Judicial
Committee
of
the
Privy
Council
decided
that
the
Dominion
government
had
the
power
to
impose
a
dominion
income
tax
for
dominion
purposes,
notwithstanding
the
apparent
exclusive
delegation
of
the
power
to
levy
direct
taxation
to
the
provinces
under
subsection
92(2).
The
plaintiff's
case
being
totally
founded
on
the
alleged
unconstitutionality
of
the
Income
Tax
Act
has
no
possibility
whatsoever
of
succeeding.
The
statement
of
claim
should
therefore
be
struck
out
under
Rule
419(1
)(a)
as
disclosing
no
reasonable
cause
of
action.
With
such
a
disposition
it
is
not
necessary
to
consider
whether
the
claim
against
Anton
Plas
should
be
struck
out.
Order
The
statement
of
claim
is
struck
out
in
its
entirety.
Application
allowed.
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