Jack Klundert v. R. – After Tax Evasion Conviction an Attempt to Re-litigate in the Tax Court is an Abuse of Process

Bill Innes on Current Tax Cases

http://decision.tcc-cci.gc.ca/en/2013/2013tcc208/2013tcc208.html New Window

Jack Klundert v. The Queen[1] (June 21, 2013) appears to be one of the final innings in a long string of litigation:

[3]            The facts providing context for the issues in dispute here are not themselves disputed. The Appellant, an optometrist practising in Windsor, Ontario, either filed tax returns showing nil income or failed to file tax returns between 1993 and 1997 taxation years and was investigated by audit at first and then subject to a criminal investigation pursuant to which a warrant for search and seizure was executed pursuant to section 487 of the Criminal Code, R.S.C. 1985, c. C-46, as amended. The Appellant had three trials before the Ontario Superior Court of Justice on tax evasion, two appeals before the Ontario Court of Appeal, and leave to appeal to the Supreme Court of Canada was denied. The third and last trial before the Ontario Superior Court of Justice, by jury, was decided on May 20, 2010, in which the Appellant was convicted of tax evasion under section 239 of the Income Tax Act (the “Act”); which conviction was appealed to the Ontario Court of Appeal which dismissed his appeal on September 12, 2011, and for which leave to appeal to the Supreme Court of Canada was denied on April 5, 2012. Based on the findings of this third trial, in which the Appellant was found to have failed to report respective amounts of $241,625, $270,403, $434,931, $254,520 and $272,910 for the years from 1993 to 1997, the Canada Revenue Agency (“CRA”) reassessed his income taxes on exactly the same basis.

This decision arises from the Crown’s motion to quash Mr. Klundert’s appeals in relation to the same amounts dealt with in the criminal convictions and Mr. Klundert’s cross-motion to amend his pleadings to exclude evidence obtained by the Crown on the basis that the predominant purpose for obtaining the information was for a criminal investigation, not determining his civil liability:[2]

[1]            The Respondent has brought a motion to strike the Appellant’s Notice of Appeal and dismiss same pursuant to sections 53 and 58 of the Tax Court of Canada Rules (General Procedure) (the “Rules”) on the grounds the Notice of Appeal fails to contain any proper pleading; this Court does not have jurisdiction to hear the appeal, such Notice of Appeal is an abuse of process and is frivolous and vexatious and that the issues in this Notice of Appeal have already been determined in previous Ontario Court proceedings and hence issue estoppel applies as well as the doctrine of collateral attack.

[2]            The Appellant disputes the Respondent’s grounds for striking or dismissal on the grounds the Notice of Appeal raises issues of law which are within the jurisdiction of this Court that have not been addressed in any previous proceeding; namely, whether evidence that should have been inadmissible in prior criminal proceedings for tax evasion and the making of false statements that was not argued to be inadmissible in such prior proceedings, violate the Appellant’s constitutional rights pursuant to sections 7 and 8 of the Canadian Charter of Rights and Freedoms (the “Charter”), and requests that the Court grant his motion to amend his Notice of Appeal by also adding an additional request for relief by quashing the reassessment on grounds of such constitutional violation, or in the alternative, find such evidence to be inadmissible for the purposes of this tax appeal.

The Tax Court first concluded that the Notice of Appeal did not disclose any proper grounds of appeal but only conclusory statements asserting the violation of the appellant’s Charter rights:

[23]        There is no evidence in the pleadings that would allow the Court to come to the conclusion the Appellant’s Charter rights were violated. Unlike in O’Neill Motors above, here there is no admission of the Respondent that evidence was illegally obtained nor do we have a finding from the Ontario Superior Court of Justice as to same notwithstanding that the Appellant had multiple opportunities to plead such issue before both trial and appellate courts. In short, there is no evidence, finding or pleading that would permit this Court to find that the pleadings are sufficient to establish any cause of action. All we have is conjecture, speculation and innuendo. These are not enough to meet the threshold that the Appellant has any chance whatsoever to succeed in his claim.

[24]        When fundamental rights such as those protected under the Charter are in issue, I would probably be more inclined to grant an order allowing an Appellant to amend his Notice of Appeal, but here the Appellant’s motion to amend his Notice of Appeal is only for the purposes of adding the requested relief of quashing the reassessment and not to plead any material facts that would enable the Court to deal with the issue more appropriately. Accordingly, on the basis of the pleadings alone, I would dismiss the Notice of Appeal, however, the matter must be also be viewed in the entire context and after consideration of the other grounds relied upon by the Respondent, since in the end, all the Appellant’s arguments lead to the alleged Charter violation.

The court declined to hold in favour of the Crown based on issue estoppel since the Jarvis argument had not been raised before any of the previous courts in the criminal proceedings:

[31]        Although I find the Appellant’s argument remote and unlikely to succeed if he were allowed to argue this specific issue before a judge of this Court having regard to the insufficiency of his pleadings, I must concede that, however weak I might consider his chances in the circumstances, to dismiss his appeal solely on the basis of issue estoppel would not be appropriate. The Appellant is correct that the Charter issue was not an issue determined by a court having competent jurisdiction and thus one of the preconditions to the application of the doctrine of issue estoppel  may not have been met; due to the Appellant’s own failure to have raised it.

The court did however accept the Crown’s argument that the instant tax appeals were an abuse of process:

[35]        The Appellant is effectively asking this Court to decide the issue as to whether evidence obtained in a civil matter audit was used in evidence, improperly, to obtain a criminal conviction when he could have and should have asked those other courts who had the jurisdiction to do so. That matter is solely within the jurisdiction of the Ontario Courts to decide. The argument of the Appellant is that if they did not do so, even if the Appellant did not raise the issue in the several proceedings before the Ontario Superior Court of Justice, the Ontario Court of Appeal or in leave to the Supreme Court of Canada, that somehow this Court has jurisdiction to entertain the argument. I do not agree. It is one thing for this Court to accept that the decision of those competent Courts on the admissibility of such evidence should apply to proceedings under this Court as the Courts did in Holub and MacIver above, it is quite another to suggest that this Court, in the exercise of its discretionary jurisdiction under subsection 24(2) of the Charter should accept the role of hearing matters outside its jurisdiction just because they were not heard in the court having jurisdiction to hear them in the first place.

 [38]        Frankly, coming to this Court after going all the way to the Supreme Court of Canada is nothing short of blatant abuse of process and a frivolous act that attempts to place this Court in a position of appellate Court to those higher appellate courts. I am not prepared to assume such a ridiculous and disrespectful role. The Appellant is doing nothing more than attempting to relitigate the same issue he had or should have had before the Ontario Courts before the Tax Court of Canada which also offends the doctrine of collateral attack as argued by the Respondent and constitutes a blatant abuse of process that is not to be condoned.

While the court’s observation that only the Ontario courts had jurisdiction over the Jarvis issue could be regarded as overly broad, the ultimate decision in paragraph 38 above, based on abuse of process, seems to be a very reasonable conclusion to this tax equivalent of Bleak House litigation.

[1] 2013 TCC 208.

[2] See:  R. v. Jarvis – 2002 SCC 73 – [2002] 3 S.C.R. 757 – 2002-11-21.