Date: 20030507
Docket: ITA-749-03
Neutral citation: 2003 FCT 568
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA AS REPRESENTED BY CANADA
CUSTOMS AND REVENUE AGENCY ("CCRA")
Applicant
- and -
JUDI JOHNSON
Respondent
(Delivered Orally from the Bench
at Calgary, Alberta on Wednesday, May 7, 2003)
[1] The respondent seeks an interlocutory injunction to stop further proceedings with respect to the "ex parte filing of a Writ of Seizure and Sale" against the real and personal property of Judi D. Johnson. As a preliminary matter, the respondent seeks leave to have her husband, B.T.J. Johnson act, as counsel, on her behalf.
[2] I will deal first with the respondent's request that her husband represent her on this motion. Rule 119 of the Federal Court Rules, 1998 provides that an individual may act in person or be represented by a solicitor in the Federal Court of Canada. There is no provision that permits a non-lawyer to represent a litigant who is an individual. The notice of motion states that the basis of this request is that "...she originally came from Quebec and does not feel that she is as articulate as might be necessary to make presentations and address representatives of the Canada Customs and Revenue Agency in the court, etc."
[3] There is no reference, in Ms. Johnson's supporting affidavit, to the grounds advanced regarding this request. In the absence of evidence, I am at a loss to know what significance is to be attached to the statement that the respondent is "originally from Quebec". The motion record and supporting affidavit are in English and demonstrate, on their face, proficiency in the English language. If the respondent's first language is French (a fact that was not provided) and she is more comfortable presenting her case in her first language, Rule 31 provides for a request under the Official Languages Act, R.S.C. 1985, c. 31 (1st. Supp.). No such request appears to have been made.
[4] An individual has no right, inherent or otherwise, to represent his or her spouse before the court: Giagnocavo v. Minister of National Revenue (1995), 189 N.R. 225 (Fed. C.A.). Whether the court possesses an inherent jurisdiction, in appropriate circumstances, to permit representation by a non-lawyer if the interests of justice so require has not been determined: Erdmann v. Canada, [2001] 3 C.T.C. 111 (Fed. C.A.) I need not make such determination because if the jurisdiction does exist, I would not exercise it here. The respondent's request for representation by her husband is denied.
[5] I turn now to the request for an interlocutory injunction. A brief summary of the facts is required to provide contextual background. On May 9, 2002, Canada Customs and Revenue Agency (CCRA) assessed the respondent for income taxes owing for the taxation years 1997, 1998, 1999 and 2000. The tax liability as of May 9th was $37,363.53. Ms. Johnson did not file notices of objection with respect to the assessments nor did she file appeals to the Tax Court of Canada. Instead, on November 5, 2002, an "independent accountant" forwarded correspondence to CCRA, on behalf of the respondent, demanding that CCRA respond to 7 questions and warning that failure to respond would be taken, by the respondent, as an admission that the assessments were "without legal foundation".
[6] By January 14, 2003, the respondent's liability with respect to the 1997-2000 taxation years stood at $39,135.07. CCRA, under subsection 223(2) of the Income Tax Act filed a Certificate and a Requisition for a Writ of Seizure and Sale in the Federal Court. The Writ of Seizure and Sale issued on January 28, 2003 and was registered in the Land Titles Office of the South Alberta Land Registration District on March 21, 2003 under registration number 031 093 127. Certificate of Title 991 126 956 confirms the registration of the Writ against the land owned by Bud T.J. Johnson and Judi D. Johnson as joint tenants. On January 28, 2003, CCRA delivered a requirement to pay to HSBC Bank in relation to the tax debt. HSBC responded on January 30th advising that it would not be forwarding any monies as it was not indebted to the respondent. CCRA has not taken any other collection steps against the respondent.
[7] On March 8, 2003, the "independent public accountant" forwarded further correspondence to CCRA advising that the respondent's tax returns for 1997-2000 were filed and received by the Southern Interior Tax Services Office on August 8, 2002. Each return showed "zero taxable income and no taxes owing". The correspondence alleged deliberate refusal to properly assess and provided a final opportunity to CCRA to correct its "mistakes, errors in judgement(sic) and law...". An addendum to this correspondence dated March 9, 2003, emanating from the same author, referenced section 337 of the Criminal Code and threatened legal action if CCRA did not provide the requested information within 72 hours. Further correspondence, of the same tenor, dated April 14th, April 19th and April 23rd was forwarded to CCRA from the respondent. CCRA on April 15, 2003, acknowledged receipt of the April 14th correspondence, advised the respondent that her letter did not constitute a formal request for information and it enclosed information booklets regarding access to information.
[8] The affidavit of the respondent, sworn in support of her motion for interlocutory relief, is comprised of eight paragraphs. Each begins with "It is my belief..." and is followed by an allegation. The allegations, summarized, are that: the assessments are false and fraudulent; CCRA failed to respond to requests for information because the information did not exist; CCRA provided false and fraudulent assessments in order to obtain a Writ of Seizure and Sale; the definitions in the Criminal Code define indictable offences by CCRA employees; CCRA agents, officials and employees swear an oath of allegiance to Her Majesty and by their actions, have renounced their oaths and are working in dishonour of Her Majesty; the Income Tax Act does not supersede the Criminal Code, and CCRA is acting as if it is above the law and is using conspiracy and false pretences to intimidate and extort moneys and other assets from persons it deems "tax protestors".
[9] Manitoba (AG) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 and RJR-MacDonald Inc v. Canada, [1994] 1 S.C.R. 1 remain the pivotal authorities regarding the test that must be satisfied by one who seeks interlocutory relief. There are three elements, which are conjunctive, to be met. Therefore, to succeed, the respondent must satisfy all three elements. The elements are: that there exists a serious issue to be tried; that irreparable harm will result if the relief is not granted, and that the balance of convenience favours granting the relief.
[10] Regarding serious issue, the respondent need demonstrate only that the claim is not frivolous or vexatious to satisfy this element. The respondent has failed to establish a serious issue. First, there is no underlying application filed in relation to this matter. It is clear, on the basis of the written material and the oral arguments that Ms. Johnson challenges the assessments and the tax liability arising under them. She has every right to make such a challenge. She insists that during the 1997-2000 taxation years, she was not employed, did not earn any money and that the assessments are wrong. The difficulty is that she has not challenged the assessments in the proper forum. This court is bound by subsection 152(8) of the Income Tax Act, which deems the assessments to be valid unless and until they are varied on objection or appeal. Challenges to assessments must be made by way of objections under section 164 of the Income Tax Act and by way of appeal to the Tax Court of Canada under section 169 of the Income Tax Act. The Federal Court of Appeal in Minister of National Revenue v. Parsons, [1984] 2 F.C. 331 determined that the trial division of the federal court lacks jurisdiction to deal with the validity of assessments under the Income Tax Act. I do not have jurisdiction with respect to the respondent's complaints. Therefore, for purposes of this motion, no serious question exists.
[11] Since the first element of the test for interlocutory relief has not been established,
I need not deal with the elements of irreparable harm and balance of convenience. The motion is dismissed, but in the exercise of my discretion, without costs.
"Carolyn Layden-Stevenson"
JUDGE
Calgary, Alberta
May 7, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: ITA-749-03
STYLE OF CAUSE: HER MAJESTY THE QUEEN IN RIGHT
OF CANADA AS REPRESENTED BY CANADA
CUSTOMS AND REVENUE AGENCY ("CCRA")
v. JUDI JOHNSON
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: Wednesday, May 7, 2003
REASONS FOR ORDER
DELIVERED FROM
THE BENCH : LAYDEN-STEVENSON, J.
DATED: Wednesday, May 7, 2003
APPEARANCES:
Mr. Kerry Boyd FOR APPLICANT
Ms. Judi D. Johnson FOR RESPONDENT
SOLICITORS OF RECORD:
Morris A. Rosenberg
Deputy Attorney General of Canada FOR APPLICANT
Ms. Judi D. Johnson
Calgary, Alberta FOR RESPONDENT