Leroux v. Canada Revenue Agency, 2012 BCCA 63

• Judge: Huddart, Groberman and Garson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: Tuesday November 01, 2011
• Jurisdiction: British Columbia
• Citations: 2012 BCCA 63;(2012), 316 B.C.A.C. 187 (CA)

Leroux v. CRA (2012), 316 B.C.A.C. 187 (CA);

    537 W.A.C. 187

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. FE.019

Irvin Leroux and Irvin Leroux carrying on business as Leroux Holdings and also as Irvin's Park & Campground (respondent/appellant on cross-appeal/plaintiff) v. Canada Revenue Agency (appellant/respondent on cross-appeal/defendant)

(CA038332; 2012 BCCA 63)

Indexed As: Leroux v. Canada Revenue Agency

British Columbia Court of Appeal

Huddart, Groberman and Garson, JJ.A.

February 8, 2012.

Summary:

The plaintiff sued the Canada Revenue Agency (CRA) for damages founded on misfeasance in public office, negligence and breach of the Charter and Canadian Bill of Rights. The CRA applied to strike the claims.

The British Columbia Supreme Court, in a decision reported at [2010] B.C.T.C. Uned. 865, struck the claims under the Charter and Bill of Rights as disclosing no reasonable cause of action and as an abuse of process, while permitting the tort claims to continue. The CRA appealed the order dismissing its application to strike the tort claims. The plaintiff cross-appealed the dismissal of his Charter and Bill of Rights claims.

The British Columbia Court of Appeal allowed the appeal to provide for a direction that the misfeasance and negligence claims be reformulated in a revised statement of claim. The court dismissed the cross-appeal.

Civil Rights - Topic 5672

Equality and protection of the law - Particular cases - Taxation - General - The plaintiff sued the Canada Revenue Agency (CRA) for damages claiming, inter alia, breach of s. 15 of the Charter - He alleged discrimination based on differential treatment regarding the availability of a statutory stay made between persons who owe GST under the Excise Tax Act and those who owe income tax under the Income Tax Act (ITA) - An application judge struck the claim - The British Columbia Court of Appeal dismissed the plaintiff's appeal - While GST debtors might not have the benefit of a statutory stay of enforcement during the objection and appeal processes such as that provided to income tax debtors by s. 225.1 of the ITA, there was simply no pleading of any material fact that would support a finding the law worked a substantive inequality that perpetuated disadvantage or stereotyping - A distinction based on whether a debtor owed tax based on income rather than sales tax collected from customers was so far removed from "personal characteristics" found in the enumerated grounds as to render the case bound to fail - The nature of a debt did not have the capacity to perpetuate discrimination, prejudice and stereotyping - See paragraphs 45 to 47.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Life, liberty and security of the person - A plaintiff argued that because the Excise Tax Act lacked a statutory stay of collection activities pending appeal, his s. 7 rights were violated by the actions of the Canada Revenue Agency in that he suffered a loss of wealth, freedom to earn his living as he chose, and mental suffering - The British Columbia Court of Appeal found no error in an application judge's conclusions that the plaintiff's s. 7 rights were not engaged by the lack of that provision in the Act - The protection of life, liberty and security of the person did not include the kind of economic interests or the impacts arising from them that were alleged - The mental suffering alleged would not engage his rights under s. 7 - See paragraphs 48 to 55.

Practice - Topic 2239.4

Pleadings - Striking out pleadings - Grounds - Abuse of process - Collateral attack on administrative decision - The plaintiff sued the Canada Revenue Agency (CRA) for damages alleging, inter alia, misfeasance in public office and negligence - The CRA applied to strike the claims, arguing that they constituted a collateral attack on the validity of orders of the Tax Court of Canada and the consequential tax assessments - The application judge permitted the tort claims to continue - He held that the action was based on the conduct of CRA officials and raised issues distinct from those that would have been addressed in the statutory review process which concerned itself with the validity of the assessments - The action did not raise a collateral attack on the validity of the earlier proceedings - The British Columbia Court of Appeal upheld that judge's ruling but ordered the misfeasance and negligence claims be reformulated in a revised statement of claim - See paragraphs 9 to 24.

Practice - Topic 2250

Pleadings - Striking out pleadings - Bars - Law still evolving - The plaintiff sued the Canada Revenue Agency (CRA) for damages alleging, inter alia, negligent supervision of a CRA employee and negligent actions - An application judge dismissed the CRA's application to strike these claims - The plaintiff appealed - The question was whether negligent supervision or a negligent act in the course of the administration or enforcement of the Income Tax Act and Excise Tax Act could rise to a private law remedy - The British Columbia Court of Appeal stated that the answer depended on whether a duty of care should be imposed on the CRA or any of its employees toward a taxpayer - Neither party had provided any authority or analogous cases in which any court had previously identified proximity between a taxing authority and a taxpayer - Without such an established or analogous category, the plaintiff had to plead and ultimately prove that the CRA or one of its employees was in a close and direct relationship to him or her such that it was just to impose a duty of care in the circumstances - The chambers judge was not plainly wrong in leaving the issue for consideration following a trial, or any interlocutory application as might flow from amendments to the pleadings, disclosure and discovery - See paragraphs 37 to 42.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - [See Practice - Topic 2250 ].

Torts - Topic 81

Negligence - Duty of care - Requirement that duty be owed to plaintiff - [See Practice - Topic 2250 ].

Torts - Topic 9151

Duty of care - Particular relationships - Claims against public officials, authorities or boards - General - [See Practice - Topic 2250 ].

Cases Noticed:

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 5].

TeleZone Inc. v. Canada (Attorney General), [2010] 3 S.C.R. 585; 410 N.R. 1; 273 O.A.C. 1; 2010 SCC 62, refd to. [para. 15].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 17].

Domtar Inc. et al. v. Canada (Attorney General), [2009] 6 C.T.C. 61; 392 N.R. 200; 2009 FCA 218, refd to. [para. 20].

Roitman v. Canada, [2006] 5 C.T.C. 142; 353 N.R. 75; 2006 FCA 266, leave to appeal refused (2006), 362 N.R. 400 (S.C.C.), refd to. [para. 20].

McArthur v. Canada (Attorney General), [2010] 3 S.C.R. 626; 273 O.A.C. 55; 410 N.R. 55; 2010 SCC 63, refd to. [para. 24].

Holland v. Saskatchewan et al., [2008] 2 S.C.R. 551; 376 N.R. 316; 311 Sask.R. 197; 428 W.A.C. 197; 2008 SCC 42, refd to. [para. 31].

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 31].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 31].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 37].

Main Rehabilitation Co. v. Minister of National Revenue (2004), 329 N.R. 248; 247 D.L.R.(4th) 597; 2004 FCA 403, leave to appeal refused (2005), 343 N.R. 196 (S.C.C.), refd to. [para. 43].

Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396; 412 N.R. 149; 300 B.C.A.C. 120; 509 W.A.C. 120; 2011 SCC 12, refd to. [para. 46].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 46].

Corbière et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 46].

Siemens et al. v. Manitoba (Attorney General) et al., [2003] 1 S.C.R. 6; 299 N.R. 267; 173 Man.R.(2d) 1; 293 W.A.C. 1; 2003 SCC 3, refd to. [para. 50].

Blencoe v. Human Rights Commission (B.C.), [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 51].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 52].

Swiftsure Taxi Co. v. Minister of National Revenue, [2005] 2 C.T.C. 347; 332 N.R. 385; 2005 FCA 136, refd to. [para. 53].

Ward v. Vancouver (City) et al., [2010] 2 S.C.R. 28; 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222; 2010 SCC 27, refd to. [para. 54].

Counsel:

D.W. Jacyk and J.W. Levine, for the appellant;

D.L. Armstrong and H. Wellman, for the respondent.

This appeal and cross-appeal were heard at Vancouver, B.C., on November 1, 2011, before Huddart, Groberman and Garson, JJ.A., of the British Columbia Court of Appeal. The reasons for judgment of the court were delivered by Huddart, J.A., on February 8, 2012.