http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/144654/index.do
Bauer v. The Queen (May 31, 2016 – 2016 TCC 136, Lyons J.).
Précis: The Crown moved to strike at least 38 full paragraphs of the taxpayer’s Notice of Appeal and portions of other paragraphs of the Notice of Appeal. The provisions in dispute all essentially attacked the conduct and motivation of CRA in assessing the taxpayer. The Court concluded that the provisions had no likelihood of success, were abusive and would unduly delay the proceedings. As a result the provisions were struck. The taxpayer was denied leave to file an amended Notice of Appeal elaborating on the disputed provisions. The Crown was given 60 days to file an amended Reply. The Crown was awarded costs fixed at $1,000.
Decision: Essentially the disputed provisions attacked the investigation and assessment procedure:
[15] The respondent’s position is that the proper issues arising from the reassessments under appeal are those set out in paragraph 3 of these reasons. It is plain and obvious, therefore, that there is no reasonable possibility of success on the matters pled. These matters fall outside this Court’s jurisdiction and/or are irrelevant to the validity and correctness of the reassessments. Advancing matters that engages areas of documentary and oral discovery involving CRA conduct at various junctures; CRA’s selection and implementation of the net worth methodology; the alleged investigation of the appellant; the purpose and legality of the requirements and exercise of the Minister’s powers; and disclosure under the Privacy Act are frivolous, abusive and if retained would delay the conduct of the appeal within the meaning of subsection 53(1) of the Rules and should be struck.
[16] The appellant’s position is that this Court has the jurisdiction to consider the matters in the impugned pleadings. He mainly alleges that the Minister abused her powers in issuing unlawful requirements to procure the records from the banks, to further an investigation and not as a serious and genuine inquiry as to his tax liability, thus the records were illegally obtained and relied on by the CRA to issue the reassessments. Therefore his section 8 Charter rights were violated in the issuance of the requirements and then the reassessments warranting Charter-based relief (“principle argument”). Instead of striking any of his pleadings, he requests that the Court permit his Amended Notice of Appeal to be amended further to more clearly articulate matters over which this Court has jurisdiction.
The Tax Court went through all of the taxpayer’s arguments in considerable detail and ultimately rejected them all:
[73] I conclude that based on the foregoing reasons, it is plain and obvious that the factual allegations, issues and reasons pled in support of arguments to be advanced at trial would have no reasonable possibility of success, are abusive and if retained would delay the hearing of the appeal.
[74] The respondent’s Motion is granted and the following pleadings are struck from the Amended Notice of Appeal:
a. paragraphs 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 38, 39, 40, 41, 42, 44, 47, 48, 53, 54, 55, 56, 57, 58, 59, 61, 62, 63, 66, 67, 68, 69, 70, 72 and the portion of paragraph 52 that reads “sections 8 and 24 of the Charter, and”;
b. the sub-headings above paragraphs 53 and 61 entitled “The Bank Records” should be excluded from evidence under 24(2) of the Charter” and “The Appellant is entitled to a s.24(1) remedy”, respectively; and
c. subparagraph 1(b) under section G.
[75] Paragraph 37 shall be moved to the Reasons section of the Amended Notice of Appeal. Since the appellant seeks to amend by elaborating on the relief, which cannot be granted, this would not cure the pleading and leave is denied to the appellant further amendments his existing Amended Notice of Appeal.
[76] Within 60 days of the date of this Order, the respondent shall file and serve a Reply to the pleadings that have not been struck from the Amended Notice of Appeal.
Costs fixed at $1,000 were awarded to the Crown.