Peter
A.K.
Giles,
A.S.P.:—When
this
motion
was
set
down
for
hearing,
it
was
to
strike
the
statement
of
claim.
At
the
hearing
the
plaintiff
sought
to
file
an
amended
statement
of
claim.
Counsel
for
the
Crown
indicated
she
was
prepared
to
consent
to
the
filing
of
the
amended
statement
of
claim
if
the
motion
could
be
considered
as
one
applicable
to
the
amended
statement
of
claim.
Counsel
for
the
plaintiff
indicated
his
consent
and
I
therefore
ordered
the
amended
statement
of
claim
filed
and
proceeded
to
hear
the
motion
as
one
to
strike
the
statement
of
claim
as
amended.
In
this
action
the
plaintiff
invokes
the
aid
of
the
Federal
Court
to
remedy
the
alleged
improper
actions
of
officials
of
the
Department
of
National
Revenue
in
obtaining
waivers
from
him
which
enabled
the
Department
to
reassess
the
plaintiff's
income
for
taxation
purposes
at
a
time
when,
but
for
the
waivers,
the
Department
would
have
had
no
right
to
reassess.
The
actions
of
the
Department,
it
is
alleged,
were
such
that
the
plaintiff
can
plead
non
est
factum
with
respect
to
the
waivers
and
any
subsequent
reassessment
is
therefore
a
nullity.
The
defendant
relies
on
section
29
of
the
Federal
Court
Act
which
indicates
that
this
Court
does
not
have
jurisdiction
where
provision
is
expressly
made
by
an
Act
of
the
Parliament
of
Canada
for
an
appeal,
as
such,
to
the
Court.
The
cases
indicate
that
the
appeal
may
be
an
indirect
one
as
is
the
case
here.
When
the
statement
of
claim
was
issued,
no
reassessment
had
been
made
and
there
would
appear
to
have
been
no
statutory
provision
for
an
appeal
at
that
stage.
The
plaintiff
may
have
been
justified
in
resorting
to
this
Court
at
that
time
to
prevent
the
use
of
the
waivers.
However,
as
is
apparent
from
the
affidavit
of
Aziz
Fazal,
sworn
March
1,
1988,
what
purport
to
be
notices
of
reassessment
have
been
issued
and
served
and
notices
of
objection
have
been
filed
with
respect
to
them.
The
plaintiff's
argument
is
that
the
waivers
being
a
nullity,
the
reassessments
are
out
of
time
and
therefore
a
nullity
and
that
this
Court
should
so
declare
and
provide
consequential
relief.
It
is
quite
apparent
that
the
plaintiff
can
make
his
objection
now
that
the
purported
assessments
have
been
issued
through
the
usual
channels.
Counsel
referred
me
to
the
cases
which
have
been
decided
since
M.N.R.
v.
Parsons
and
Flemming,
[1984]
C.T.C.
352;
84
D.T.C.
6345
(F.C.A.)
There
have
been
no
further
decisions
of
the
Federal
Court
of
Appeal
and
there
have
been
apparently
conflicting
decisions
of
the
Trial
Division
of
the
Court.
The
most
recent
decision
is
that
of
Walsh,
J.
in
Robert
Hart,
et
al.
v.
M.N.R.,
[1986]
2
C.T.C.
63;
86
D.T.C.
6335.
As
the
most
recent
decision
it
is
the
one
which
would
be
binding
upon
me
if
the
ratio
for
that
decision
is
indistinguishable
from
that
in
one
of
the
other
cases
and
from
the
situation
in
this
case.
I
note
that
in
Optical
Recording
Corporation
v.
The
Queen,
et
al.,
[1986]
2
C.T.C.
325
at
333;
86
D.T.C.
6465
at
6471
it
is
noted
that
the
issues
raised
"questions
of
fundamental
administrative
illegality,
unfair
treatment
and
estoppel".
There
do
not
appear
to
have
been
any
such
issues
in
Robert
Hart.
In
the
present
case,
what
can
be
categorized
as
“unfair
treatment"
is
alleged.
Estoppel
is
not
an
issue
in
this
case.
The
fundamental
illegality
in
the
Optical
Recording
case
consisted
of
the
Department's
policy
being
one
which
was
not
authorized
by
any
statute.
In
this
case,
the
complaint
arises
from
the
alleged
unfair
conduct
of
a
single
officer
of
the
Department.
Parsons
involved
a
lack
of
legal
authority
in
the
Minister.
Bechtold
Resources
Limited
v.
M.N.R.,
[1986]
3
F.C.
166;
[1986]
1
C.T.C.
195
(“Bechtold
#1")
involved
the
Minister’s
jurisdiction
to
assess.
Robert
Hart
involved
the
Minister's
jurisdiction.
Bonnie
Ellen
Danielson
v.
M.N.R.,
[1986]
2
C.T.C.
341;
86
D.T.C.
6495
involved
an
attack
on
an
assessment.
G.
&
R.
Block
Research
&
Development
(1981)
Corporation
et
al.
v.
M.N.R.,
[1987]
1
C.T.C.
253;
87
D.T.C.
5137,
involved
the
Minister's
jurisdiction
to
assess
at
the
time
when
he
did.
Reginald
J.
Gibbs
v.
M.N.R.,
[1984]
C.T.C.
434;
84
D.T.C.
6418,
was
also
an
attempt
to
quash
an
assessment.
W.T.C.
Western
Technologies
Corporation
v.
M.N.R.,
[1986]
1
C.T.C.
110;
86
D.T.C.
6027
while
having
a
different
result
also
involved
attack
on
the
Minister's
right
to
assess
when
he
did.
All
the
foregoing
cases
except
Optical,
it
will
be
observed,
turned
on
the
appropriateness
of
Departmental
action
in
the
light
of
the
provisions
of
the
Income
Tax
Act.
Optical
Recording,
however,
involved
more
than
the
provisions
of
the
Act.
There
were
actions
of
officials
of
the
Department
involved
"so
infected
with
error
of
law,
illegal
conduct,
excess
of
jurisdiction,
as
to
engage
the
superintending
jurisdiction
of
Superior
Court".
In
this
case,
there
are
allegations
of
conduct
which,
if
proved,
might
be
found
sufficiently
venal
to
require
the
intervention
of
this
Court.
As
indicated
previously,
it
is
my
view
that
at
the
time
the
statement
of
claim
was
issued,
section
29
was
not
relevant.
If,
as
I
find,
there
might
be
official
conduct
such
as
to
require
the
intervention
of
the
Court,
does
the
fact
that
there
has
been
reassessment
and
notices
of
objection
have
been
filed,
have
any
effect?
It
appears
from
Optical
Recording,
that
it
does
not.
Counsel
for
the
Crown
pointed
out
that
there
were,
in
effect,
two
actions
now
in
progress
in
which
the
effectiveness
of
the
waivers
could
be
considered.
This
is
of
course
the
case,
but
as
pointed
out
by
counsel
for
the
plaintiff,
while
a
motion
to
stay
one
of
them
might
be
successful,
there
was
no
such
motion
before
the
Court.
In
my
view
there
being
no
motion
to
stay
before
the
Court,
the
element
of
duplicity
cannot
be
taken
into
account.
However,
if
I
am
wrong,
and
it
is
necessary
to
take
the
matter
into
account,
I
note
that
in
this
action
the
only
facts
to
be
considered
are
those
relating
to
what
amounts
to
a
plea
of
non
est
factum.
If
the
plaintiff
were
successful
with
such
a
plea,
it
appears
the
entire
dispute
would
be
resolved.
The
litigation
set
in
motion
by
the
reassessments
and
notices
of
objection
would
involve
both
the
same
non
est
factum
plea
and
tax
matters
requiring
more
evidence
and
argument
and
can
be
considerably
more
time
consuming.
It
is
therefore
unlikely
that
this
action
would
be
one
that
was
stayed.
Counsel
for
the
Crown
pointed
out
that
the
relief
sought
included
injunctive
relief
and
submitted
that
such
relief
was
not
available
against
the
Minis-
ter.
For
the
reasons
set
forth
in
Webster
Industries
Ltd.
v.
The
Queen,
[1983]
1
F.C.
393
and
the
cases
cited
therein
it
would
appear
that
counsel
is
correct.
However,
there
is
no
motion
seeking
to
strike
only
those
portions
of
the
claim
relevant
to
injunctive
relief.
While
they
might
be
struck
if
the
Court
were
so
moved,
it
is
not
open
to
me
to
strike
a
portion
only
of
the
claim
on
the
motion
before
me.
The
motion
to
strike
the
statement
of
claim
will
therefore
be
dismissed.
Motion
dismissed.
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