Foote v. Canada (Attorney General) et al., (2013) 335 B.C.A.C. 152 (CA)

• Judge: Donald, Low and Groberman, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 18, 2013
• Jurisdiction: British Columbia
• Citations: (2013), 335 B.C.A.C. 152 (CA);2013 BCCA 466;2013 BCCA 135

Foote v. Can. (A.G.) (2013), 335 B.C.A.C. 152 (CA);

    573 W.A.C. 152

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. AP.017

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

(CA039721; 2013 BCCA 135; 2013 BCCA 466)

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

British Columbia Court of Appeal

Donald, Low and Groberman, JJ.A.

March 18, 2013 and October 29, 2013.

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., in a decision reported at 322 B.C.A.C. 296; 549 W.A.C. 296, dismissed both the application for indigent status and the application for security for costs. The appeal respecting the decision of Savage, J., proceeded.

The British Columbia Court of Appeal dismissed the appeal.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - See paragraphs 1 to 17.

Practice - Topic 2239.2

Pleadings - Striking out pleadings - Grounds - Action prescribed or barred by limitation period - See paragraphs 1 to 17.

Counsel:

Appellants appeared in person;

K. Khalsa and L. Chun, for the respondent.

This appeal was heard in Vancouver, B.C., on March 18, 2013, before Donald, Low and Groberman, JJ.A., of the British Columbia Court of Appeal. The following decision was delivered orally, for the court, by Low, J.A., on March 18, 2013. Supplementary reasons were delivered on October 29, 2013.