The
Associate
Chief
Justice:—This
motion
for
an
order
pursuant
to
Rule
419(l)(a)
of
the
Federal
Court
Rules
striking
out
the
plaintiffs’
statement
of
claim
or
in
the
alternative,
staying
the
action,
came
on
for
hearing
before
me
at
Toronto,
Ontario,
on
October
1,
1984.
By
statement
of
claim
filed
September
5,
1984,
the
plaintiffs
seek
a
declaration
that
a
document
purporting
to
be
a
certificate
of
the
Minister
of
National
Revenue
given
under
subsection
244(4)
of
the
Income
Tax
Act
*
is
without
factual
foundation
and
was
made
fraudulently
and
is,
therefore,
without
force
and
effect.
It
is
common
ground
that
for
the
purpose
of
an
application
under
Rule
419(l)(a)
the
Court
must
proceed
on
the
basis
that
the
facts
alleged
in
the
statement
of
claim
can
be
proven
at
trial.
Only
in
cases
where
it
is
plain
and
obvious
that
no
reasonable
cause
of
action
is
disclosed
will
an
application
to
strike
the
statement
of
claim
succeed.
Any
doubt
must
be
resolved
in
favour
of
permitting
the
plaintiffs
to
proceed
to
trial.
Informations
were
laid
against
the
plaintiffs
on
July
18,
1983,
alleging
that
they
had
made
false
statements
in
tax
returns
and/or
wilfully
evaded
payment
of
taxes
imposed
by
the
Act
contrary
to
paragraphs
239(1
)(a)
and
(d)
of
the
Income
Tax
Act
in
relation
to
the
1974,
1975,
1976,
1977,
1978
and
1979
taxation
years.
The
Crown
elected
to
proceed
by
way
of
summary
conviction
and,
therefore,
subsection
244(4)
of
the
Act
becomes
relevant:
244.
(4)
An
information
or
complaint
under
the
provisions
of
the
Criminal
Code
relating
to
summary
convictions,
in
respect
of
an
offence
under
this
Act,
may
be
laid
or
made
on
or
before
a
day
5
years
from
the
time
when
the
matter
of
the
information
or
complaint
arose
or
within
one
year
from
the
day
on
which
evidence,
sufficient
in
the
opinion
of
the
Minister
to
justify
a
prosecution
for
the
offence,
came
to
his
knowledge,
and
the
Minister’s
certificate
as
to
the
day
on
which
such
evidence
came
to
his
knowledge
is
conclusive
evidence
thereof.
If
the
five-year
limitation
is
applied
to
the
facts
in
this
case,
it
is
obvious
that
those
offences
alleged
to
have
occurred
prior
to
1978
are
prescribed
by
the
terms
of
subsection
244(4).
Here,
however,
a
certificate
dated
July
22,
1983,
sets
out
that
in
the
opinion
of
the
Minister,
sufficient
evidence
came
to
the
Minister’s
knowledge
on
April
14,
1983,
to
justify
the
prosecution
of
the
plaintiffs
for
the
wilful
evasion
of
the
payment
of
taxes
set
forth
in
the
Information.
It
is
this
certificate
which
forms
the
subject
matter
of
the
plaintiffs’
action.
In
the
statement
of
claim,
it
is
alleged
that:
5.
The
Plaintiffs
state
and
the
fact
is
that,
if,
as
Giles
[Director-Taxation,
Hamilton-
Wentworth]
had
purported
to
certify,
evidence,
sufficient
in
the
opinion
of
the
Minister
to
justify
prosecution
for
the
offences
alleged
in
the
Information,
came
to
his
knowledge
as
contemplated
by
subsection
244(4)
of
the
Act,
then
such
evidence
came
to
his
knowledge
long
prior
to
the
14th
day
of
April,
1983.
6.
In
particular,
the
Plaintiffs
state
that
the
Department
began
an
investigation
into
the
respective
income
tax
affairs
of
the
Plaintiffs
in
or
about
the
month
of
December,
1979,
for
purposes
unrelated
to
the
charges
contained
in
the
Information.
At
that
time,
the
records
of
the
Plaintiffs
and
their
Corporations
were
seized.
An
investigation
was
commenced
for
matters
unrelated
to
the
reasons
for
the
seizure
thereof.
The
investigation
extended
throughout
1980,
1981
and
the
first
half
of
1982
during
which
period
virtually
all
of
the
Department’s
witnesses
had
been
interviewed.
In
or
about
the
month
of
January,
1983,
the
Department
communicated
to
the
Plaintiffs
that
the
investigation
had
been
completed.
7.
The
Plaintiffs
state
that
Dobrowsky
[officer,
Special
Investigation
Section]
was,
without
proper
justification
or
excuse,
exceedingly
dilatory
in
preparing
and
submitting
his
report
and
recommendations
to
the
Department
of
Justice.
8.
Based
upon
the
above
facts,
the
Plaintiffs
state
that
the
Minister
must
have
had
knowledge
of
all
the
evidence
he
ever
had
with
respect
to
all,
or
in
the
alternative,
some
of
the
offences
alleged
in
the
Information
on
or
before
the
17th
day
of
July,
1982
and
in
any
event
prior
to
the
14th
day
of
April,
1983.
Therefore,
Giles
knew,
or
ought
to
have
known,
that
he
could
not
truthfully
certify
that
such
evidence
had
come
to
the
Minister’s
knowledge
on
the
14th
day
of
April,
1983.
9.
The
Plaintiffs
state
that,
to
the
extent
that
the
aforementioned
document
signed
by
Giles
purports
to
be
a
certificate
of
the
Minister
under
subsection
244(4)
of
the
Act,
it
was
made
fraudulently
or
was
otherwise
affected
by
fraud
and
is
false.
The
Plaintiffs
further
state
that
the
issuing
of
such
document
was
an
abuse
of
the
Minister’s
power
under
subsection
244(4)
of
the
Act.
10.
The
Plaintiffs
state
that
the
aforementioned
document
was
prepared
and
is
being
used
for
an
improper
purpose,
namely,
to
support
the
prosecution
of
the
Plaintiffs
for
the
offences
alleged
in
the
Information,
whereas,
in
fact
Dobrowsky
was,
by
virtue
of
the
operation
of
subsection
244(4)
of
the
Act,
out
of
time
to
lay
the
Information
as
he
purported
to
do.
In
support
of
the
application
to
strike
the
statement
of
claim,
counsel
for
the
defendants
cited
the
decision
of
the
Supreme
Court
of
Canada
in
Fee
v
Bradshaw,
[1982]
1
SCR
609;
[1982]
CTC
201,
the
headnote
of
which
reads:
The
jurisdiction
of
the
Trial
Division
of
the
Federal
Court
under
s
18
of
the
Federal
Court
Act
extends
to
“any
federal
board,
commission
or
other
tribunal’’.
The
filing
of
a
certificate
stating
the
date
on
which
evidence
came
to
the
Minister’s
knowledge
does
not
constitute,
either
in
the
fact
of
filing
the
certificate
or
in
the
statement
which
it
contains,
an
administrative
decision
or
the
exercise
of
a
discretionary
power
by
the
Minister
so
as
to
make
the
definition
of
the
words
“board,
commission
or
tribunal’’
in
s
2
of
the
Act
applicable
to
him.
The
application
for
an
injunction
is
accordingly
dismissed,
as
in
the
case
at
bar
there
is
no
remedy
under
s
18.
There
have
also
been
a
number
of
cases
in
which
the
jurisdiction
of
this
Court
to
issue
declaratory
relief
under
section
18
of
the
Federal
Court
Act*
has
been
questioned,
but
these
plaintiffs
do
not
seek
relief
under
section
18.
They
have
commenced
an
action
authorized
by
section
17.
17.
(1)
The
Trial
Division
has
original
jurisdiction
in
all
cases
where
relief
is
claimed
against
the
Crown
and,
except
where
otherwise
provided,
the
Trial
Division
has
exclusive
original
jurisdiction
in
all
such
cases.
Accordingly,
I
must
reject
counsel’s
argument
that
this
Court
lacks
the
jurisdiction.
Counsel
further
argued
that
the
statement
of
claim
should
be
struck
on
the
ground
that
it
does
not
disclose
any
reasonable
cause
of
action.
I
am
satisfied,
however,
that
on
the
basis
of
the
reasoning
of
Mahoney,
J
in
Usarco
Limited
et
al
v
The
Queen,
[1981]
FC
763,
it
would
be
inappropriate
to
summarily
dispose
of
the
plaintiffs’
action
under
Rule
419(1).
In
dealing
with
virtually
identical
facts,
Mahoney,
J
states:
Assuming,
as
I
must,
all
of
the
allegations
of
fact
in
the
statement
of
claim
to
be
true,
the
inferences
the
plaintiffs
invite
are,
firstly,
that
Giles
must
have
had
all
the
evidence
he
ever
had
not
later
than
May
1978,
and,
secondly,
that
he,
standing
in
the
Minister’s
shoes,
could
not
truthfully
certify
that
it
had
come
to
the
Minister’s
attention
in
June,
and
that
his
untruthful
certification
was
fraudulent.
Notwithstanding
counsel’s
indignation
that
such
a
proposition
should
be
advanced
by
the
plaintiffs,
much
less
entertained
by
the
Court,
I
cannot
agree
that,
on
the
facts
alleged,
those
inferences
are
so
farfetched
as
to
support
a
summary
finding
that
the
statement
of
claim
ought
to
be
struck
out
as
disclosing
no
reasonable
cause
of
action.
In
Usarco
Limited
et
al
v
The
Queen,
[1980]
CTC
484;
80
DTC
6381,
my
learned
colleague,
Dubé,
J,
said:
The
burden
of
proof
is
on
the
defendants
to
show
that
the
continuance
of
the
action
would
work
an
injustice
on
them,
or
would
be
an
abuse
of
the
process
of
the
Court:
they
have
not
established
that
to
my
satisfaction.
Neither
have
they
shown
that
the
stay
does
not
cause
any
injustice
to
the
Plaintiffs.
The
latter
have
every
right
to
see
their
action
progress
towards
a
judicial
solution.
In
the
alternative,
counsel
for
the
defendants
seeks
an
order
staying
this
action
until
the
tax
evasion
proceedings
against
the
plaintiffs
are
completed.
It
is
argued
that
the
continuation
of
this
action
will
place
the
defendants
in
the
position
of
having
to
answer
questions
on
examination
that
will
provide
the
plaintiffs
with
a
defence
to
the
charges.
Counsel
also
argues
that
to
allow
this
action
to
proceed
would
give
rise
to
the
possibility
of
conflicting
pronouncements
from
this
Court
and
the
Provincial
Court
(Criminal
Division),
Judicial
District
of
Hamilton-Wentworth.
Subsection
50(1)
of
the
Federal
Court
Act
provides:
50.
(1)
The
Court
may,
in
its
discretion,
stay
proceedings
in
any
cause
or
matter,
(a)
on
the
ground
that
the
claim
is
being
proceeded
with
in
another
court
or
jurisdiction;
or
(b)
where
for
any
other
reason
it
is
in
the
interest
of
justice
that
the
proceedings
be
stayed.
Paragraph
50(1
)(a)
is
not
applicable
in
this
case
since
the
proceedings
in
the
Provincial
Court
are
for
the
offence
of
tax
evasion,
whereas
in
this
Court,
the
plaintiffs’
claim
is
for
declaratory
relief
in
relation
to
the
certificate
issued
pursuant
to
subsection
244(4)
of
the
Income
Tax
Act.
The
plaintiffs
have
no
assurance
of
an
opportunity
to
attack
the
certificate
in
the
criminal
proceedings.
Indeed,
existing
jurisprudence
seems
to
support
the
view
that
it
may
be
filed
without
supporting
testimony.
Were
it
otherwise,
this
action
might
not
be
necessary.
Obviously,
duplication
of
litigation
should
be
discouraged
but
inconvenience
to
the
parties,
particularly
in
the
early
stages,
is
not
the
reason.
If
these
plaintiffs
are
to
be
deprived
of
the
right
to
bring
an
action
in
this
Court,
it
must
be
on
the
basis
of
avoiding
the
possibility
of
conflicting
judicial
pronouncements
in
parallel
proceedings
between
the
same
parties.
Here,
the
parties
are
close,
but
not
the
same
—
one
proceeding
is
criminal
in
nature,
the
other
is
civil
and
judgment
certainly
in
this
Court,
is
far
from
imminent.
I
should
add
that
I
am
reluctant
to
add
even
the
appearance
of
support
for
any
suggestion
that
a
litigant
suffers
disadvantage
in
the
civil
courts
simply
because
of
his
involvement
in
related
criminal
proceedings.
Accordingly,
both
the
application
to
strike
and
the
application
to
stay
the
proceedings
must
be
dismissed
with
costs.
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