https://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/365061/index.do
Brooks v. The Queen (February 28, 2019 – 2019 TCC 47, Campbell J.).
Précis: CRA moved to strike portions of the taxpayer’s pleadings:
[2] The Respondent submits that it is plain and obvious that these paragraphs should be struck for several reasons. First, the Respondent contends that the Notice of Appeal pleads allegations, pertaining to the conduct of officials at Canada Revenue Agency (“CRA”), which are irrelevant to the correctness of a taxpayer’s assessment. Second, the Notice of Appeal also contains allegations pertaining to violations of the Appellant’s rights under sections 7 and 8 of the Canadian Charter of Rights and Freedoms (the “Charter”) resulting from the exercise of civil audit powers used to gather records and information, which the Respondent argues disclose no reasonable cause of action and have no reasonable prospect of success. Third, the Appellant seeks to vacate the reassessments pursuant to section 24 of the Charter but there has been no violation of his rights under sections 7 or 8 of the Charter.
The taxpayer’s counsel argued that the Supreme Court had changed the law in this area in the Conway decision and that he should be allowed to proceed with his claim of Charter violations:
[4] Appellant counsel summarizes his position as follows:
…The … entire argument … is based upon the principle that the Tax Court is a court of competent jurisdiction and can give full-on Charter relief. That’s section 24(1). Not limited to an O’Neill Motors type of situation, but in any case where there’s a Charter violation it can make remedies under 24(1) that is just and appropriate or appropriate and just in the circumstances.
If that’s not correct, then my friend is right, the impugned provisions in the Notice of Appeal would have to be struck. …
(Transcript, line 21 on page 52 to line 4 on page 53)
The Tax Court rejected the taxpayer’s expansive interpretation of the Conway decision and allowed the Crown’s motion to strike with costs to CRA fixed in the amount of $1,000 payable forthwith.
Decision: The Tax Court found that the taxpayer’s situation was governed by existing jurisprudence that was not ousted by the Conway decision:
[24] The fact scenarios in Piersanti, Romanuk and Bauer are almost identical to the facts presented in the Appellant’s pleadings in the motion before me. Based on the conclusions in the decisions of Piersanti, Romanuk and Bauer, those paragraphs in the Appellant’s pleadings that challenge the admissibility of evidence obtained during the audit process should be struck, as it is plain and obvious that the facts pleaded disclose no Charter violations under section 7 or 8 and, consequently, no remedy under section 24. The Appellant’s pleadings place into issue the actions and conduct of CRA officials and the Charter challenges, respecting the information obtained during the course of an investigation and subsequently used to raise an assessment. There are no facts that would allow me to distinguish this case from those decisions in Piersanti, Romanuk and Bauer.
…
[28] It is my view that the Appellant’s proposed interpretation of Conway and its applicability to this Court cannot be correct within the context of the relevant statutory provisions and existing jurisprudence. The jurisdiction of this Court is qualified by the powers set out in its overriding statutory legislation. It cannot deal, for example, with discretionary fairness relief or with provincial tax disputes. In addition, the legislative intent was also to withhold the power to grant to taxpayers relief such as damages. This Court’s power is limited by statute to a determination of how much tax, if any, is payable. Both Appellant and Respondent counsel agreed that this Court is a court of competent jurisdiction with the power to decide questions of law relating to Charter issues, including whether a provision is valid or not. However, the available remedies to this Court are designated in subsection 171(1) of the Act and are specifically limited to those. Contrary to what the Appellant suggests, this Court’s remedial powers are restricted by the legislation. This Court does have the authority to address Charter issues that are connected to issues that are properly before it. Conway focussed primarily on specialized tribunals but although its reasons can be logically extended to this Court, its applicability is limited by the statutory provisions that govern this Court. Conway cannot override that legislative intent.
[29] The Appellant cited the decision in O’Neil Motors Ltd. v. The Queen, 96 DTC 1486, as an example of this Court’s jurisdiction under section 24 to grant Charter remedies. In that case, Bowman J. (as he was then) concluded that an exclusion of evidence alone would be insufficient and he went on to vacate the taxpayer’s reassessment. The Federal Court of Appeal upheld this decision on the basis that this Court had jurisdiction to award the remedy it did in those particular circumstances (see [1998] 4 FC 180). However, O’Neill can be distinguished from the present motion in that the documents in O’Neill had been seized under an invalidly issued search warrant. Records were seized pursuant to a provision in the Act that was subsequently found to be unconstitutional. The facts before me are in line, not with O’Neill, but with the fact scenarios in Piersanti, Romanuk and Bauer. Consequently, even though this Court has the power to grant remedies under section 24 of the Charter in accordance with its governing statutory scheme, it is plain and obvious that I cannot grant a remedy in these circumstances because the Appellant’s rights have not been violated under sections 7 and 8.
Accordingly the Tax Court rejected the taxpayer’s expansive interpretation of the Conway decision and allowed the Crown’s motion to strike with costs to CRA fixed in the amount of $1,000 payable forthwith.