Steven Grant Lightburn v. Her Majesty the Queen, [1994] 1 CTC 2431, 94 DTC 1239

Bell, J.T.C.C.:—Mr. Lightburn (herein called "Lightburn") filed and served a notice of motion in respect of an appeal from assessments for the 1980, 1981, 1982 and 1983 taxation years. The first motion, expressed to be brought pursuant to Rule 82 of the Tax Court of Canada Rules (General Procedure) appeared to seek a judgment from this Court to the effect that the respondent "provide readable documents and all inculpatory and exculpatory information in his possession".

A second motion, expressed to be brought pursuant to Rule 93(3) of the said Rules, sought an order from this Court naming some person other than the officer nominated by the respondent to be examined in an examination for discovery.

After lengthy proceedings, involving the hearing of a motion brought by the respondent, the appellant withdrew his motions.

I pointed out that the respondent's notice of motion had not been filed and served at least seven days before the day on which the motion was to be heard. The appellant stated that he had received a copy of the notice of motion and affidavits on Friday, January 14, 1994, the hearing of this motion having been set down for and having commenced on Tuesday, January 18, 1994. The appellant, in response to my query, stated that he felt somewhat prejudiced by the lack of notice because he did not have time to prepare his arguments in respect thereof. However, he later stated that he would need two or three months to prepare his response. Having regard to all of the circumstances, including the extraordinary passage of time between reassessments and the motion before the Court and having regard to my statement to the appellant that I was familiar with the jurisprudence respecting the matter of jurisdiction under discussion and was disposed to allow the respondent's motion, dispensed with compliance with the seven day notice requirement.

The hearing of the respondent's motion then proceeded. It was for an order "dismissing some of the issues raised in the appellant’s appeal." The grounds for the motion were that pursuant to section 58(3)(a) of the Tax Court of Canada Rules (General Procedure):

. . . this Honourable Court has no jurisdiction over the subject matter of some of the issues raised by the appellant in his notice of appeal, including, but not restricted to, the appellant’s reliance on section 7, paragraphs 11(b), 11(d) and 15(1) of the Canadian Charter of Rights and Freedoms, allegations of negligence on the part of officers employed by Revenue Canada, Customs, Excise and Taxation, and issue estoppel.

After some discussion between respondent's counsel and me, the words quoted above, namely "but not restricted to" were withdrawn from the notice of motion.

Respondent's counsel then stated that her submission was that this Court has no jurisdiction over any matter set forth or described in the appellant’s notice of appeal other than matters respecting the validity of the reassessments of appellant's income for the aforesaid four years.

In support of the respondent's position, counsel referred the Court to section 171 of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act") and sections 12 and 13 of the Tax Court of Canada Act, R.S.C. 1985, c. T-2.

These sections, giving this Court its jurisdiction, read as follows:

Income Tax Act

Section 171: Disposal of appeal.

(1) The Tax Court of Canada may dispose of an appeal by

(a) dismissing it; or

(b) allowing it and

(i) vacating the assessment,

(ii) varying the assessment, or

(iii) referring the assessment back to the Minister for reconsideration and reassessment.

Tax Court of Canada Act

12(1) The Court has exclusive original jurisdiction to hear and determine references and appeals to the Court on matters arising under the Canada Pension Plan, Part IX of the Excise Tax Act, the Income Tax Act, the Old Age Security Act, the Petroleum and Gas Revenue Tax Act and the Unemployment Insurance Act, where references or appeals to the Court are provided for in those Acts.

(2) The Court has exclusive original jurisdiction to hear and determine appeals on matters arising under the War Veterans Allowance Act and the Civilian War Pensions and Allowances Act and referred to in section 17 of the Veterans Appeal Board Act.

(3) The Court has exclusive original jurisdiction to hear and determine questions referred to it under section 173 or 174 of the Income Tax Act or section 310 or 311 of the Excise Tax Act.

(4) The Court has exclusive original jurisdiction to hear and determine applications to extend the time to object or appeal pursuant to section 167 of the Income Tax Act or section 304 or 305 of the Excise Tax Act.

13. The Court has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents and other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in a superior court of record.

Respondent's counsel then stated that if the Court found it had jurisdiction in respect of matters other than the merits of the aforesaid reassessments, it would, by virtue of the doctrine of "issue estoppel" not be able to hear same.

Respondent's counsel referred the Court to the Supreme Court of Canada decision in Mills v. The Queen, [1986] 1 S.C.R. 863, 26 C.C.C. (3d) 481 for the purpose of discussing the concept of a court of competent jurisdiction, that term being used in subsection 24(1) of the Canadian Charter of Rights and Freedoms. That section reads as follows:

24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court consider appropriate and just in the circumstances.

Counsel quoted from page 952-53 (C.C.C. 491) as follows:

It is not for the judge to assign jurisdiction in respect of any matters to one court or another. This is wholly beyond the judicial reach. In fact, the jurisdictional boundaries created by Parliament and the legislatures are for the very purpose of restraining the courts by confining their actions to their allotted spheres. In subsection 24(1) of the Charter the right has been given, upon the alleged infringement or denial of a Charter right, to apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. The Charter has made no attempt to fix or limit the jurisdiction to hear such applications. It merely gives a right to apply ina court which has jurisdiction. It will be seen as well that it prescribes no remedy but leaves it to the Court to find what is appropriate and just in the circumstances.

Counsel then referred the Court to McMillen Holdings Ltd. v. M.N.R., [1987] 2 C.T.C. 2327, 87 D.T.C. 585 (T.C.C.) in which this Court found that it had no jurisdiction to order payment of interest. An amount of money owed to the taxpayer by the Crown on account of interest was not an amount which was subject to an assessment or an assessed amount of money. In that case the taxpayer was not appealing from any assessment of income tax or interest but was asking the Court to make a direction ordering the Minister to make a payment of interest. The Court had no jurisdiction to make such an order. It only had jurisdiction to hear and dispose of an appeal from an assessment and such was not in issue in that case.

At pages 2331-32 (D.T.C. 588) Judge Rip said,

There appears to be no statutory provision authorizing this Court to direct the Minister to pay interest to a taxpayer on the refund amount. Thus even if I found that the refund amount was an overpayment within the meaning of subsection 164(7) I was concerned I was without authority to satisfy the appellant.

At page 2336 (D.T.C. 591) Judge Rip said

Section 12 of the Tax Court of Canada Act grants this Court original jurisdiction to hear and determine appeals on matters arising under the Act and other statutes. Subsection 171(1) of the Act regulates how the Court may exercise its original jurisdiction to hear and determine an appeal under the Act. Section 13 of the Tax Court of Canada Act simply grants the Court all powers, rights and privileges as are vested in a superior court of record in respect of witnesses, documents and other matters necessary or proper for the due exercise of its jurisdiction, that is, to hear and determine appeals, but section 13 does not increase the Court's jurisdiction to that of a superior court of record. The due exercise of this Court's jurisdiction on matters arising under the Act is to hear and determine an appeal from a tax assessment. I cannot overemphasize that the Court's original jurisdiction is to hear and determine appeals in matters arising under the Act; an action against the Crown based on the Act, but is not an appeal from an assessment, is not an appeal arising under the Act, which is within the jurisdiction of this Court.

In Van Leenen v. M.N.R., [1991] 2 C.T.C. 2442, 91 D.T.C. 1265 (T.C.C.) Judge Mogan, at page 2448 (D.T.C. 1269), said,

There is no jurisdiction granted to this Court to hear an issue of negligence and determine the amount of damages when relief is sought against an individual tor what he has done or failed to do as a servant of the federal Crown. On the contrary, that kind of jurisdiction is granted exclusively to the Federal Court-Trial Division under section 17 of the Federal Court Act.

In Hertzogv. M.N.R., [1991] 1 C.T.C. 2529, 91 D.T.C. 720 (T.C.C.), the Minister's motion for an order dismissing appeals where no computation of tax payable was contested but applications for declaratory judgment was made, was allowed and the appeals were quashed.

The appellant's appeal raises issues properly brought before this Court, namely the validity of the reassessments of his income for the 1980, 1981, 1982 and 1983 taxation years. All other matters raised in the notice of appeal are not properly before this Court, it being clear from my interpretation of the legislative provisions conferring jurisdiction upon this Court and from the authorities presented by respondent's counsel that this Court has no jurisdiction to make any order or judgment in respect thereof.

Accordingly, all matters set out in the appellant’s notice of appeal, other than the computation of tax payable in each of the aforesaid taxation years, are struck out. Having regard to this conclusion, it is not necessary to consider the respondent's alternative argument respecting issue estoppel.

Application allowed.