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Docket: 2002-2807(CPP) |
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BETWEEN: |
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WILLIAM SHAWN DAVITT, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
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Motion heard on April 24, 2003, at Toronto, Ontario,
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By: The Honourable Judge C.H. McArthur |
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Appearances: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent: |
Lesley King |
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ORDER
UPON motion by the Respondent for an Order striking out the Appellant's Notice of Appeal; or, in the alternative, striking out paragraphs 1 to 115 of the Notice of Appeal or any combination thereof;
AND UPON reading the pleadings and other materials filed;
UPON hearing the Appellant and counsel for the Respondent;
IT IS ORDERED that the Appellant's appeal is struck out in its entirety, with costs of the Respondent.
Signed at Ottawa, Canada, this 18th day of June, 2003.
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"C.H. McArthur" |
J.T.C.C.
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Citation: 2003TCC412 |
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Date: 20030618 |
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Docket: 2002-2807(CPP) |
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BETWEEN: |
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WILLIAM SHAWN DAVITT, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
REASONS FOR ORDER
McArthur J.
[1] This is a motion by the Respondent for an Order striking out the Appellant's Notice of Appeal or, alternatively, striking out paragraphs 1 to 115 of the Notice of Appeal or any combination thereof. The grounds for the motion are:
1. The Notice of Appeal or parts of the Notice of Appeal are scandalous, frivolous or vexatious or an abuse of the process of the Court, as set out in Rule 53(b) and (c) of the General Procedure Rules;
2. the Notice of appeal discloses no reasonable cause of action, as set out in Rule 58(1)(b) of the General Procedure Rules;
3. the Tax Court of Canada does not have the jurisdiction to grant the relief sought by the Appellant;
4. rule 12 of the General Procedure Rules;
5. section 12 of the Tax Court of Canada Act, R.S.C. 1985, c. T-2, as amended and s. 171(1) of the Income Tax Act, R.S.C. 1985, c.1 (5th Supp.); and
[2] Section 58 of the Tax Court of Canada Rules (General Procedure) sets out circumstances under which pleadings may be struck out. It reads:
58(1) A party may apply to the Court,
(a) for the determination, before hearing, of a question of law raised by a pleading in a proceeding where the determination of the question may dispose of all or part of the proceeding, substantially shorten the hearing or result in a substantial saving of costs, or
(b) to strike out a pleading because it discloses no reasonable grounds for appeal or for opposing the appeal,
and the Court may grant judgment accordingly.
[3] This motion is very similar to a motion heard by Judge Bowman in William Shawn Davitt v. The Queen, 2001 DTC 702. The first appeal was focused on the Income Tax Act and other legislation whereas the present appeal concerns the Canada Pension Plan (CPP) only. The motion to strike out the first notice of appeal is, for the most part, identical to the submissions in the present motion. Judge Bowman granted the Respondent's motion by striking out the Appellant's entire appeal. The major arguments in the first Notice of Appeal are repeated in the current Notice of Appeal. These include the following.
Charter Challenge
[4] The Appellant has pleaded certain facts regarding the CPP at paragraphs 11 through 16 in the Notice of Appeal. Those same facts were also pleaded in the first Notice of Appeal at paragraphs 116 through 121. The Appellant makes a section 15 Charter analysis on the pleaded facts at paragraphs 24 through 30 of the Notice of Appeal. The analysis is the same as in the first Notice of Appeal at paragraphs 124 through 134 with certain elaborations. The thrust of the argument pleaded is as follows:
24. The Appellant submits the CPP contribution rates set out in section 11.1 of the CPP Act discriminate on the basis of age contrary to subsection 15(1) of the Charter by requiring younger Canadians to make contributions to the CPP at substantial higher rates than older Canadians even though younger Canadians are not entitled to receive higher CPP benefits. The government's policy of grossly under-funding the CPP, in conjunction with the contribution rates set pursuant to section 11.1 operate to transfer wealth from younger Canadians to older Canadians; resulting in the unjust enrichment of older Canadians at the expense of younger Canadians.
Contracts with Minors are Void
[5] The Appellant submits at paragraphs 35 through 38 of the Notice of Appeal that his CPP liability is void as a result of the rule that debt contracts with infants are void at common law. That same argument was presented in the first Notice of Appeal at paragraphs 33 through 37, but with respect to income tax liability. The thrust of the argument pleaded is as follows:
38. A significant portion of the unfunded liability of the CPP accrued prior to the period the Appellant reached the age of majority.
Breach of Fiduciary Duty
[6] The Appellant submits at paragraphs 39 through 42 of the Notice of Appeal that the Government of Canada has breached its fiduciary duty to Canadian children by eventually making them responsible to fund programs that support their elders. That same argument was presented in the first Notice of Appeal at paragraphs 38 through 42, but with respect to income tax liability. The thrust of the argument pleaded is as follows:
42. The Government of Canada's policy of grossly under-funding the CPP and its subsequent attempt to transfer this unfunded liability to Canadian children constitutes a breach of this fiduciary duty. This policy is contrary to the interests of Canadian children. Its effect is to transfer the burden of funding the CPP from older Canadians to younger Canadians resulting in the unjust enrichment of older Canadians to the detriment of younger Canadians.
Odious Debts
[7] The Appellant submits at paragraphs 58 through 106 of the Notice of Appeal that the Government of Canada's reporting practices are unsatisfactory and as such, he is not liable for CPP. That same argument was presented in the first Notice of Appeal at paragraphs 55 through 58, but with respect to income tax liability. The thrust of the argument pleaded is as follows:
58. Subsection 15(1) of the Charter should be interpreted in a manner consistent with the laws governing agency relationships and the Doctrine of Odious Debts. These rules operate to protect Canadians, and especially young Canadians, from responsibility for debts and liabilities that do not relate to legitimate government expenditures and that were incurred by corrupt and oppressive governments.
UN Rights of the Child
[8] The Appellant submits at paragraphs 107 through 110 of the Notice of Appeal that the CPP exploits children contrary to the United Nations Declaration of the Rights of the Child. That same argument was presented in the first Notice of Appeal at paragraphs 59 and 60, but with respect to income tax liability. The thrust of the argument pleaded is as follows:
107. The government's policy of under-funding the CPP and its attempt to transfer the financial burden of the funding the CPP onto future generations via section 11.1 of the CPP Act is a form of child exploitation, contrary to the United Nations Declaration of the Rights of the Child. The protections under subsection 15(1) of the Charter should be interpreted in a manner consistent with this international standard.
New Argument - CPP Pyramid Scheme
[9] The Appellant has pleaded an argument in this appeal that was not present in the first appeal. Paragraphs 43 through 57 of the Notice of Appeal compare the CPP to paragraph 206(1)(e) of the Criminal Code - pyramid schemes. The thrust of the argument is pleaded as follows:
44. The manner of funding the CPP resembles a Ponzi or pyramid-selling scheme. Webster's dictionary defines a Ponzi scheme as a fraudulent investment scheme in which funds paid in by later investors are used to pay artificially high returns to the original investors, thus attracting more funds.
[10] In addition to more minor amounts, the Appellant requests "punitive damages of $11,000,000" pursuant to section 24 of the Charter.
Analysis
[11] I have had the advantage of reading Judge Bowman's decision dealing with an appeal by the same Appellant employing the same submissions. I agree with his analysis and conclusion in its entirety. It is an abuse of process for the Appellant to present such a similar appeal on the chance another judge may buy the same submissions.
[12] In reply to the Respondent's motion, the Appellant provided five books of authorities containing over 1,000 pages. I do not pretend to have scrutinized all submissions. This Court does not have the omnipotence to do what the Appellant is requesting. My thoughts could not be better expressed than the following from Judge Bowman in the first Davitt motion:
24 This court is not empowered to do any of the things asked for. Our function is to hear appeals from assessments made under certain federal statutes. Generally, we can allow or dismiss appeals, and vacate or vary assessments or refer the matter back to the Minister of National Revenue for reconsideration and reassessment. Like all courts this court has certain powers under the Canadian Charter of Rights and Freedoms where a person's rights and freedoms under the Charter have been infringed but those powers must be exercised within the jurisdiction that Parliament has conferred on the court, as for example in O'Neill Motors Limited v. The Queen, 96 DTC 1486, aff'd 98 DTC 6424 (F.C.A.).
25 What the appellant seeks here is not within those powers or that jurisdiction. The amendment of an act of Parliament is within the competence of the legislative, not the judicial, branch of government.
29 There are procedures for appealing to this court from determinations or assessments under the CPP. They have not been followed. There are limitations to the type of relief that this court can give in such appeals. The relief sought here is not the type of relief that this court can give. Moreover, the amendment of legislation is not something that is available as a remedy that courts can give under the Charter.
37 There is no more merit in the positions advanced with respect to the so-called "claw-back" of Old Age Security benefits than there was with respect to employment insurance and the CPP. Section 15 of the Charter cannot be invoked every time someone dislikes a provision of the Income Tax Act. The fact that social benefits are unequally distributed does not of itself justify a remedy under the Charter. The amendment of fiscal or any other legislation to correct some perceived or imagined inequity is not something that the Charter empowers the court to do. Indeed the arguments here are even more devoid of merit than with respect to the Employment Insurance Act and the CPP. The appellant is not of an age where he might receive Old Age Security benefits. The fact that they might be "clawed-back" some thirty years hence (assuming the legislation remains unchanged -- a rather fanciful conjecture) is no basis upon which any action of this court could be based. This is clear from the judgment of Dickson, J. in Operation Dismantle (supra) at pages 456-457.
43 This is not something this court can do. The appellant might wish to consider speaking to his Member of Parliament.
52 Paragraphs 245 to 248 argue that the court should ignore procedural errors or omissions since to strike out on such grounds would be contrary to the Charter. To say that adherence to procedural requirements constitutes a violation of a litigant's rights under the Charter is a proposition that is so demonstrably nonsensical that it is sufficient merely to state it for it to be defeated by its own manifest absurdity.
53 I am in any event not striking out this appeal on procedural grounds. I am striking it out because it is frivolous, vexatious and scandalous and discloses no reasonable cause of action. I have not for some time seen such an array of singularly unmeritorious propositions. There can be no objection to law students debating imaginative and indeed far-fetched notions in a college common room. It is no doubt a salutary and necessary part of their education. It is however a waste of public funds and of the court's time to advance such matters before the courts.
These comments apply equally to the present motion.
[13] The pyramid (Ponzi) scheme the Appellant referred to is novel, but is pleaded only to provide context on which to analyze section 15 of the Charter. It does not assist the Appellant's position.
[14] The Appellant appears to have a fixation directed at the CPP and other Canadian tax-related legislation. The relief he seeks would probably cost the Treasury billions of dollars. This Court is not the forum for these colossal social upheavals. I believe that the Appellant can only find relief from the Federal Parliament.
[15] I urge the Appellant to cease arguing his social reforms before the Tax Court of Canada. His extraordinary efforts would be better spent in other directions. This Court's resources are better spent dealing with more worthy appeals. The motion is granted and the appeal is struck out in its entirety, with costs to the Respondent.
Signed at Ottawa, Canada, this 18th day of June, 2003.
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"C.H. McArthur" |
J.T.C.C.
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CITATION: |
2003TCC412 |
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COURT FILE NO.: |
2002-2807(CPP) |
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STYLE OF CAUSE: |
William Shawn Davitt and Her Majesty the Queen |
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PLACE OF HEARING: |
Toronot, Ontario |
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DATE OF HEARING: |
April 24, 2003 |
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REASONS FOR ORDER BY: |
The Honourable Judge C.H. McArthur |
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DATE OF ORDER: |
June 18, 2003 |
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APPEARANCES: |
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For the Appellants: |
The Appellant himself |
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Counsel for the Respondent: |
Lesley King |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
N/A |
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Firm: |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |