Grenon v. Canada (Attorney General),

• Judge: Hanebury
• Neutral Citation: 2007 ABQB 403
• Citation: 2007 ABQB 403,(2007), 421 A.R. 107 (QBM),421 AR 107,(2007), 421 AR 107 (QBM),421 A.R. 107
• Date: 15 February 2007
• Court: Court of Queen's Bench of Alberta (Canada)

Grenon v. Can. (A.G.) (2007), 421 A.R. 107 (QBM)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. JN.084

James Grenon (plaintiff) v. Attorney General of Canada (defendant)

(0601 10332; 2007 ABQB 403)

Indexed As: Grenon v. Canada (Attorney General)

Alberta Court of Queen's Bench

Judicial District of Calgary

Hanebury, Master

June 14, 2007.

Summary:

Grenon paid child support under a divorce judgment. After his income tax deductions for legal fees associated with his child support litigation were disallowed, he appealed his tax assessments and brought an action seeking a declaration that the Federal Child Support Guidelines were unconstitutional. Canada applied to strike the action.

A Master of the Alberta Court of Queen's Bench allowed the application.

Practice - Topic 219

Persons who can sue or be sued - Individuals and corporations - Status or standing - Validity or interpretation of legislation - Grenon paid child support under a divorce judgment - After his income tax deductions for legal fees associated with his child support litigation were disallowed, he appealed his tax assessments and brought an action, seeking a declaration that the Federal Child Support Guidelines were unconstitutional - Canada applied to strike the action, asserting, inter alia, that Grenon lacked standing - A Master of the Alberta Court of Queen's Bench struck the action - Private interest standing clothed individuals with the right to bring declaratory challenges to legislation in their own name - To do so, the individual had to demonstrate a special interest in the legislation's operation beyond the general interest of citizens at large - Further, there had to be a sufficient causative relationship between the legislation and the claimed prejudice - Accepting Grenon's stated reason for the action, which was to set the context for his tax appeals, the causative relationship was indirect and speculative, tied as it was to the action in the Tax Court - The relief claimed was in the nature of "righting a wrong" or "upholding a principle" - That was insufficient to ground a claim for private interest standing - Further, because the result of the action was a collateral attack on Grenon's divorce judgment, private interest standing could not be granted - See paragraphs 34 to 40.

Practice - Topic 219

Persons who can sue or be sued - Individuals and corporations - Status or standing - Validity or interpretation of legislation - Grenon paid child support under a divorce judgment - After his income tax deductions for legal fees associated with his child support litigation were disallowed, he appealed his tax assessments and brought an action, seeking a declaration that the Federal Child Support Guidelines were unconstitutional - Canada applied to strike the action, asserting, inter alia, that Grenon lacked standing - A Master of the Alberta Court of Queen's Bench struck the action - In order to establish public interest standing, Grenon had to establish (i) a serious issue as to the legislation's invalidity, (ii) that he had been directly affected by the legislation or had a genuine interest in the validity and (iii) that there was not another reasonable and effective way to bring the issue before the court - Clearly, it was open to Grenon to make his constitutional argument in his divorce proceedings - He was aware of the arguments available to him and had chosen not to make them - Therefore, he could not meet the test for public interest standing - See paragraphs 41 to 47.

Practice - Topic 221

Persons who can sue or be sued - Individuals and corporations - Status or standing - Public interest standing (incl. requirements of) - [See second Practice - Topic 219 ].

Practice - Topic 229

Persons who can sue or be sued - Individuals and corporations - Status or standing - Declaratory actions - [See both Practice - Topic 219 ].

Practice - Topic 5361

Dismissal of action - Grounds - General and want of prosecution - Abuse of process - Grenon paid child support under a divorce judgment - After his income tax deductions for legal fees associated with his child support litigation were disallowed, he appealed his tax assessments and brought an action, seeking a declaration that the Federal Child Support Guidelines were unconstitutional - Canada applied to strike the action as a collateral attack on Grenon's divorce judgment - Grenon asserted that the action's purpose was to establish a context for his tax appeals - A Master of the Alberta Court of Queen's Bench struck the action - A collateral attack occurred when a litigant commenced a proceeding, not expressly provided for, that would result in varying, nullifying or rendering nonsensical a prior order or decision involving the litigant - When determining if the proceeding was a collateral attack, the court could look beyond the litigant's stated purpose to the proceeding's result - Here, the result would be to have the court consider an argument Grenon could have brought in his divorce litigation and, if successful, to gut the judgment's child maintenance provisions - The action was a collateral attack on Grenon's divorce judgment, constituting an abuse of process - Further, nothing justified lifting the rule against collateral attacks - Grenon's argument that he had not raised the issues in his divorce litigation because he did not want to taint the court's consideration of his custody application was irrelevant - See paragraphs 10 to 33.

Practice - Topic 5408.1

Judgments and orders - General - Collateral attack - [See Practice - Topic 5361 ].

Cases Noticed:

Finlay v. Canada, [1986] 2 S.C.R. 607; 71 N.R. 338, refd to. [para. 7].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241, refd to. [para. 7].

Vriend et al. v. Alberta (1998), 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237 (S.C.C.), refd to. [para. 7].

Green v. Millar, [2002] B.C.T.C. 1727 (S.C.), refd to. [para. 7].

De Fehr v. De Fehr, [2002] B.C.A.C. Uned. 144 (C.A.), refd to. [para. 7].

Dirk v. Dirk, [2002] Sask.R. Uned. 124 (Q.B. Fam. Div.), refd to. [para. 7].

Miltenberger v. Braaten, [2000] Sask.R. Uned. 208 (Q.B. Fam. Div.), refd to. [para. 7].

D.P. v. C.S., [1993] 4 S.C.R. 141; 159 N.R. 241; 58 Q.A.C. 1, refd to. [para. 7].

Zeyha and Collins v. Canada (Attorney General), [2004] Sask.R. Uned. 217 (C.A.), refd to. [para. 7].

ANCQ, Re, [2004] F.C.J. No. 971 (F.C.), refd to. [para. 7].

Souliere v. Leclair (1998), 59 O.T.C. 293; 38 R.F.L.(4th) 68 (Gen. Div.), refd to. [para. 7].

Rebenchuk v. Rebenchuk (2005), 194 Man.R.(2d) 275 (Q.B. Fam. Div.), refd to. [para. 7].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 7].

Michie v. Michie, [1998] 4 W.W.R. 758; 162 Sask.R. 1 (Q.B.), refd to. [para. 7].

Wadden v. Wadden, [2000] B.C.T.C. 428; 9 R.F.L.(5th) 425; 2000 BCSC 960, refd to. [para. 7].

Dyck v. Highton (2003), 239 Sask.R. 38; 2003 SKQB 396 (Fam. Div.), refd to. [para. 7].

Dahlgren v. Hodgson (1998), 228 A.R. 332; 188 W.A.C. 332; 43 R.F.L.(4th) 176; 1999 ABCA 23, refd to. [para. 7].

Hy and Zel's Inc. v. Ontario (Attorney General) - see Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General).

Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General), [1993] 3 S.C.R. 675; 160 N.R. 161; 67 O.A.C. 81, refd to. [para. 7].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [para. 7].

Zeyha and Collins v. Canada (Attorney General), [2004] Sask.R. Uned. 167 (Q.B.), refd to. [para. 7].

Bailey v. Reynolds (1977), 7 A.R. 425; 3 Alta. L.R.(2d) 384 (Dist. Ct.), refd to. [para. 7].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Hunt v. T & N plc et al. (1990), 117 N.R. 321 (S.C.C.), refd to. [para. 7].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 7].

Chellew v. Dickie (1988), 93 A.R. 316 (Q.B. Master), refd to. [para. 7].

Zacks v. Zacks, [1973] S.C.R. 891, refd to. [para. 7].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81, refd to. [para. 7].

Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201, refd to. [para. 7].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, refd to. [para. 7].

Rolling Mix Management Ltd. v. Elliott et al., [2006] A.R. Uned. 254 (Q.B. Master), refd to. [para. 7].

Osborne v. Pinno and Milligan (1997), 208 A.R. 363 (Q.B.), refd to. [para. 7].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 7].

Kasko Estate et al. v. Lethbridge Regional Hospital et al. (2006), 393 A.R. 28 (Q.B.), refd to. [para. 7].

R.B. v. Children's Aid Society of Metropolitan Toronto - see Sheena B., Re.

Sheena B., Re (1995), 176 N.R. 161; 78 O.A.C. 1 (S.C.C.), refd to. [para. 7].

R. v. Wilson, [1983] 2 S.C.R. 594; 51 N.R. 321; 26 Man.R.(2d) 194, refd to. [para. 8].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1, refd to. [para. 8].

Ernst & Young Inc. v. Central Guaranty Trust Co. (2006), 397 A.R. 225; 384 W.A.C. 225 (C.A.), refd to. [para. 8].

Carpenter Fishing Corp. et al. v. Canada (2002), 174 B.C.A.C. 38; 286 W.A.C. 38; 2002 BCCA 611, refd to. [para. 8].

420093 B.C. Ltd. v. Bank of Montreal (1995), 174 A.R. 214; 102 W.A.C. 214; 34 Alta. L.R.(3d) 269 (C.A.), refd to. [para. 8].

P.T. v. R.B. et al. (2001), 296 A.R. 232; 2001 ABQB 739, refd to. [para. 31].

Zeyha and Collins v. Canada (Attorney General), [2004] Sask.R. Uned. 167 (Q.B.), affd. [2004] Sask.R. Uned. 217 (C.A.), refd to. [para. 43].

Counsel:

Kerry A. Whittaker (Department of Justice Canada), for the applicant/defendant;

Ronald J. Robinson, for the respondent/plaintiff.

This application was heard on February 15, 2007, by Hanebury, Master, of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on June 14, 2007.