BETWEEN:
ARTHUR WEBSTER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER AND ORDER
[1] These motions were heard by telephone conference call on December 19, 2005. They are:
1. A Notice of Motion pursuant to Rule 58 dated December 8, 2005, by the Respondent's counsel to strike out either:
(a) the "collateral issue" described in paragraph 7 of the Appellant's Factum as "a pure case of estoppel" that the Minister of National Revenue ("MNR"), through the B.C. Ministry of Children and Families, represented that "social payments are not included in the taxpayer's income pursuant to s. 81(1)(h)" of the Income Tax Act, the taxpayer relied on that in preparing his income tax returns (to his detriment) and that "The Minister is estopped from raising the assessments." And in the further alternative that the Minister's letters and representations constitute a ruling within the terms of s.18.1 of the Federal Court Act, so that this Court is without jurisdiction;
(b) striking out the purported Amended Notice of Appeal, which was filed with amendments without leave of the Court or consent of the Respondent.
2. A Notice of Motion dated December 9, 2005, by Appellant's counsel to strike out various enumerated paragraphs by the Respondent in a Response to the Appellant's Request to Admit, for further directions, and for "An award of special costs, payable forthwith in any event of the cause."
[2] Respondent's motion to strike out was dealt with first.
[3] Appellant's "collateral issue" as so described in the Reply and Amended Reply is for issue estoppel. There is a compendium of Canadian judicial decisions stating that does not lie against the Crown, many of which were cited by Respondent's counsel. For this purpose, the summary by Bowman, J., in Goldstein v. Canada, 96 D.T.C. 1029, at 1034, will suffice:
"... no estoppel can arise where such representations are not in accordance with the law."
For this reason, the alternative plea of estoppel in the Notice of Appeal and the Amended Notice of Appeal is struck.
[4] Moreover, the further alternative plea that "the Minister's letters and representations constitute a ruling on decision ..." that "... is binding upon the Respondent." is also struck for the same reason as expressed by Bowman J., and more particularly because in the material before the Court, such letters and representations do not constitute a ruling as that term is known in the law relating to the Income Tax Act and Regulations.
[5] As a result of these decisions, and using the paragraph numbers in the Appellant's counsel's Notice of Motion, the Court finds:
4. Paragraph 3(a) of the Response is correct. Whether a payment is a "prescribed payment" is a question of law and will be answered based upon facts and law to be determined by a Hearing Judge.
5. Whether any of the children were related to Arthur Webster is only known to Arthur Webster at this time. Paragraph 3(b) of the Response is correct based upon the record to date.
6. Paragraph 3(c) is a question of law based upon facts and law to be determined by a Hearing Judge respecting whether "family allowance" payments were received.
8. What the alleged "contracts" between the Appellant and the British Columbia Ministry of Social Services mean in contract law is for a Hearing Judge to determine. The Response is valid respecting 1(d).
9. The Response to 1(e) is correct. The issue in appeal is whether all or part of the payments the Appellant received were for his benefit or the children's benefit.
10. Whether the "Payments" were ordinarily made on the basis of a means, need and income test is also a question for the Hearing Judge. The denial in the Response is valid. These "Payments" may have ordinarily been made on the basis of false representations or some other basis altogether.
11. The denial of 1(g) is also correct if the "Payments" were not made under a lawful program. That is for a Hearing Judge to determine.
12 and 13.
The Response denies the authority of documents M-75 and M-95. This is a valid Response since the Request to Admit describes M-75 as a "formal ruling by the Director of Taxation" and M-95 is not referred to in the Request to Admit.
[6] As a result, Appellant's counsel's motion is dismissed.
[7] Costs for both motions are awarded in favour of the Respondent, The Queen, in any event of the cause.
Signed at Saskatoon, Saskatchewan, this 21st day of December, 2005.
"D. W. Beaubier"
Beaubier J.
COURT FILE NO.: 2001-2060(IT)G
STYLE OF CAUSE: Arthur Webster v. The Queen
PLACE OF HEARING: Victoria, British Columbia
DATE OF HEARING: December 19, 2005
REASONS FOR JUDGEMENT BY: The Honourable Justice D. W. Beaubier
DATE OF REASONS: December 21, 2005
APPEARANCES:
|
Counsel for the Appellant: |
D. Laurence Armstrong
|
|
Counsel for the Respondent: |
Lisa Macdonell |
COUNSEL OF RECORD:
Firm: Armstrong Nikolich
Barristers and Solicitors
Victoria, British Columbia
For the Respondent: John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario