Foote v. Canada (Attorney General) et al., 2012 BCCA 253

• Judge: Bennett, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 23, 2012
• Jurisdiction: British Columbia
• Citations: 2012 BCCA 253;(2012), 322 B.C.A.C. 296 (CA)

Foote v. Can. (A.G.) (2012), 322 B.C.A.C. 296 (CA);

    549 W.A.C. 296

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. JN.023

Nathan Clark Foote and Elly Foote (appellants/plaintiffs) v. Attorney General of Canada and Canada Revenue Agency (respondents/defendants)

(CA039721; 2012 BCCA 253)

Indexed As: Foote v. Canada (Attorney General) et al.

British Columbia Court of Appeal

Bennett, J.A.

June 13, 2012.

Summary:

A taxpayer (Foote) was assessed and penalized by the Canada Revenue Agency (CRA) for under-reporting his income. He was investigated for tax evasion. As part of that investigation, the CRA executed a search warrant at the taxpayer's home. No criminal charges were ever laid. The taxpayer ultimately abandoned his objections to the notices of assessment. The taxpayer and his wife sued the CRA and Attorney General of Canada (AGC), alleging negligence and Charter breaches. The CRA applied to have the claims against it struck as a collateral attack on the notices of assessment.

The British Columbia Supreme Court (Dley, J.), in a decision reported [2011] B.C.T.C. Uned. 1062, struck the claims in negligence and part of the Charter breaches claim, leaving intact claims for misfeasance in public office, breach of privacy, trespass, and the remaining part of the Charter breaches claim. The AGC applied to have the remaining claims struck as out of time and statute barred by the Limitation Act (BC).

The British Columbia Supreme Court (Savage, J.), in a decision reported [2012] B.C.T.C. Uned. 177, struck the taxpayer's claims for breach of privacy, Charter breaches, trespass, and false imprisonment as statute-barred under the Act. He declined to strike the taxpayer's sole remaining claim of misfeasance in public office, holding that there was a triable issue as to whether the limitation period's commencement with respect to that claim was postponed pursuant to s. 6 of the Act. The taxpayer and his wife appealed Savage, J.'s decision and applied for indigent status respecting the appeal. The AGC applied for security for costs.

The British Columbia Court of Appeal, per Bennett, J.A., dismissed both the application for indigent status and the application for security for costs.

Practice - Topic 8206.2

Costs - Security for costs - Security for costs of an appeal - Application - Considerations - [See both Practice - Topic 8208 ].

Practice - Topic 8208

Costs - Security for costs - Security for costs of an appeal - Grounds for - General - The British Columbia Court of Appeal discussed the legal test for security for costs (Court of Appeal Act, s. 24) - See paragraphs 10 to 13.

Practice - Topic 8208

Costs - Security for costs - Security for costs of an appeal - Grounds for - General - A taxpayer was investigated for tax evasion but no criminal charges were ever laid - The taxpayer and his wife (plaintiffs) sued the Attorney General of Canada (AGC), asserting claims for breach of privacy, trespass, and Charter breaches - The AGC had the claims struck as statute barred - The plaintiffs appealed - The AGC sought security for costs - The plaintiffs were retired farmers living on pension income, although the wife owned a share in a property valued at $70,000 - The British Columbia Court of Appeal, per Bennett, J.A., dismissed the application for security - While costs recovery was a concern, in terms of the merits, the appeal was not bound to fail - See paragraphs 10 to 13 and 22 to 24.

Practice - Topic 8894

Appeals - Parties - Indigent status - Appellants, a husband and wife, applied for indigent status - They were retired farmers, aged 72 and 68 respectively - They deposed pensions as their sole source of income - The wife owned a share in a property valued at $70,000 - The British Columbia Court of Appeal, per Bennett, J.A., discussed the test for indigent status and refused the appellants' application - The appellants did not lead any evidence that they tried and were unable to raise money on the wife's property to fund their appeal - The wife claimed that it would be difficult to obtain a mortgage; however, the appellants had not made any effort to do so - See paragraphs 7 to 9 and 14 to 21.

Cases Noticed:

Trautmann v. Baker, [1997] B.C.A.C. Uned. 44 (C.A.), refd to. [para. 7].

Duszynska v. Duszynski (2001), 149 B.C.A.C. 153; 244 W.A.C. 153; 2001 BCCA 155, refd to. [para. 7].

M.J.D. v. J.P.D. - see Duszynska v. Duszynski.

Kawana v. Sung et al., [2010] B.C.A.C. Uned. 78; 2010 BCCA 414, refd to. [para. 7].

Terrapin Mortgage Investment Corp. v. Spetifore et al. (2011), 298 B.C.A.C. 160; 505 W.A.C. 160; 2011 BCCA 4, refd to. [para. 7].

Rapton v. Superintendent of Motor Vehicles (B.C.) (2011), 299 B.C.A.C. 278; 508 W.A.C. 278; 2011 BCCA 71, refd to. [para. 7].

Griffith et al. v. House et al., [2000] B.C.A.C. Uned. 116; 2000 BCCA 371, refd to. [para. 8].

Ancheta v. Ready et al. (2003), 184 B.C.A.C. 235; 302 W.A.C. 235; 2003 BCCA 374, refd to. [para. 8].

Strata Plan VR 2000, Owners v. Grabarczyk (2008), 261 B.C.A.C. 75; 440 W.A.C. 75; 2008 BCCA 405, refd to. [para. 8].

Kohlmaier v. Campbell, [2003] B.C.A.C. Uned. 11; 2003 BCCA 61, refd to. [para. 9].

Balaj v. Xiaogang et al., [2012] B.C.A.C. Uned. 50; 2011 BCCA 211, refd to. [para. 9].

Creative Salmon Co. v. Staniford (2007), 242 B.C.A.C. 299; 400 W.A.C. 299; 2007 BCCA 285, refd to. [para. 11].

Lu v. Mao, [2006] B.C.A.C. Uned. 142; 2006 BCCA 560, refd to. [para. 12].

Southeast Toyota Distributors Inc. v. Branch et al. (1997), 99 B.C.A.C. 12; 162 W.A.C. 12; 45 B.C.L.R.(3d) 163 (C.A.), refd to. [para. 13].

Aikenhead et al. v. Jenkins (2002), 166 B.C.A.C. 293; 271 W.A.C. 293; 2002 BCCA 234, refd to. [para. 13].

Recchia v. McIntosh et al. (2002), 175 B.C.A.C. 16; 289 W.A.C. 16; 2002 BCCA 445, refd to. [para. 13].

WHA 820 Holdings Ltd. et al. v. Daymax Management Inc. et al. (2004), 202 B.C.A.C. 191; 331 W.A.C. 191; 2004 BCCA 414, refd to. [para. 13].

Statutes Noticed:

Court of Appeal Act, R.S.B.C. 1996, c. 77, sect. 24 [para. 10].

Court of Appeal Rules (B.C.) - see Rules of Court (B.C.), Court of Appeal Rules.

Rules of Court (B.C.), Court of Appeal Rules, rule 56 [para. 7].

Counsel:

The appellants in person, by telephone;

J.W. Levine and L.H. Chun, for the respondent.

This application was heard in Chambers, in Vancouver, B.C., on May 23, 2012, by Bennett, J.A., of the British Columbia Court of Appeal, who delivered the following decision on June 13, 2012.