Olympia Interiors Ltd. et al. v. Canada, (1999) 167 F.T.R. 165 (TD)

• Judge: MacKay, J.
• Court: Federal Court (Canada)
• Case Date: March 31, 1999
• Jurisdiction: Canada (Federal)
• Citations: (1999), 167 F.T.R. 165 (TD)

Olympia Interiors Ltd. v. Can. (1999), 167 F.T.R. 165 (TD)

MLB headnote and full text

Temp. Cite: [1999] F.T.R. TBEd. MY.144

Olympia Interiors Ltd. and Mary David (plaintiffs) v. Her Majesty the Queen (defendant)

(T-1436-92)

Indexed As: Olympia Interiors Ltd. et al. v. Canada

Federal Court of Canada

Trial Division

MacKay, J.

March 31, 1999.

Summary:

In 1987 Olympia was charged with 73 counts under the Excise Tax Act, but all charges were either stayed or withdrawn. Olympia and its principal, David, sued Canada for, inter alia, malicious prosecution, negligence, misfeasance and abuse of author­ity and conspiracy by Crown servants. The plaintiffs also claimed that their Charter rights under ss. 7, 8, 11, 12 and 15 were infringed. It was directed that the trial pro­ceed on issues of liability first.

The Federal Court of Canada, Trial Divi­sion, dismissed the plaintiffs' action.

Editor's Note: for other proceedings involv­ing these parties see 58 F.T.R. 261, 66 F.T.R. 81, 69 F.T.R. 229, 128 F.T.R. 284, [1997] F.T.R. Uned 271, [1997] F.T.R. Uned. 380, [1998] F.T.R. Uned. 530 and 170 N.R. 281.

Civil Rights - Topic 726

Liberty - Charter of Rights and Freedoms -Denial of liberty - What constitutes - In 1987 Olympia and its principal David were charged with 73 counts under the Excise Tax Act, but all charges were either stayed or withdrawn - They sued Canada alleging, inter alia, that the actions of various public servants (Excise and Justice Departments) had resulted in the loss of David's business and the loss of Olympia's assets - The Federal Court of Canada, Trial Division, held that the economic interests claimed by David were not protected by s. 7 of the Charter - The notices of assessment issued to Olympia did not threaten David's per­sonal liberty - See paragraphs 86 to 90.

Civil Rights - Topic 1649

Property - Search and seizure - Detention of thing seized - In 1987 Olympia and its principal David were charged with 73 counts under the Excise Tax Act, but all charges were either stayed or withdrawn - Olympia records were seized and detained in anticipation of and preparation for the criminal proceedings - Olympia and David sued Canada alleging, inter alia, their s. 8 Charter rights were violated - David argued that Olympia had inaccurate returns because, inter alia, she was unable to access her records after their seizure and that the loss of records caused damages to Olympia - The Federal Court of Canada, Trial Division, rejected the argument - David was given access to the records and some copies were provided - Retention of the records for some months following stay was not unreasonable in the circumstances since the stay did not preclude an applica­tion to resume proceedings - See para­graphs 91 to 96.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hear­ings - Speedy trial - Ac­cused's right to - What constitutes "within a reasonable time" - In August, 1987 Olympia and its principal, David, were charged under the Excise Tax Act - The trial commenced in October 23, 1989 - The Crown withdrew 10 charges then - Proceedings were adjourned in January 1990 to April 1990 - It was subsequently adjourned to June 1990 because the court could not accom­modate an April resump­tion - In June, 1990, the remaining charges were stayed - In a sub­sequent action against Canada, Olympia and David alleged, inter alia, their right to be tried within a reasonable time was violated (Charter, s. 11(b)) - The Federal Court of Canada, Trial Division, rejected the argu­ment where there was no evidence that this delay was beyond the norm for such pro­ceedings in the busy court in Brampton or evidence of prejudice caused by the delay -See paragraphs 98 to 103.

Civil Rights - Topic 4905

Presumption of innocence - General prin­ciples - When applicable - In 1987 Olympia and its principal, David, were charged with 73 counts under the Excise Tax Act, but all charges were either stayed or withdrawn - David argued that her Charter rights, including the right to be presumed innocent under s. 11(d) of the Charter, were violated when the Crown stayed the proceedings - The Federal Court of Canada, Trial Division, held that be­cause a stay of proceedings did not constitute a finding of guilt there could be no violation of s. 11(d) of the Charter - See paragraph 103.

Civil Rights - Topic 4909

Presumption of innocence - General prin­ciples - Circumstances not infringing pre­sumption - [See Civil Rights - Topic 4905 ].

Crown - Topic 1561

Torts by and against Crown - Negligence by Crown - General - In 1987 Olympia and its principal, David, were charged with 73 counts under the Excise Tax Act, but all charges were either stayed or with­drawn - They sued Canada for, inter alia, negligence - They alleged that an auditor (Martin) acted negligently by revoking Federal Sales Tax freight and installation deduction rates, thereby disregarding his duty of care to them - The Federal Court of Canada, Trial Division, held the revoca­tion was done in circumstances where a duty of care was not established, or if such a duty existed, it was not breached - Martin followed departmental procedure by sending the assessment and revoking the provisional installation deduction rates because the rates were found to be unwar­ranted - Martin did not breach any duty of care, rather he was acting pursuant to valid legislative authority - See paragraphs 74 to 77.

Torts - Topic 6156

Abuse of legal procedure - Malicious prosecution - Malice - What constitutes - In 1987 Olympia and its principal, David, were charged with 73 counts under the Excise Tax Act, but all charges were either stayed or withdrawn - They sued Canada for, inter alia, malicious prosecution - The first two elements of the tort, that Canada initiated the proceedings and that they terminated in the plaintiff's favour were conceded - The Federal Court of Canada, Trial Division, dismissed the plaintiffs' claim - The plaintiffs failed to establish the absence of reasonable and probable grounds for the prosecution and failed to prove that malice was the purpose for which the prosecution was instituted - See paragraphs 51 to 64.

Torts - Topic 6161

Abuse of legal procedure - Malicious prosecution - Reasonable and probable cause - [See Torts - Topic 6156 ].

Torts - Topic 6254

Abuse of legal procedure - Abuse of pro­cess - What constitutes - In 1987 Olympia its principal, David, were charged with 73 counts under the Excise Tax Act, but all charges were either stayed or withdrawn - They sued Canada for, inter alia, abuse of process - They argued that the criminal prosecution was abuse of process because it was for the purpose of collecting a civil remedy, taxes, interest and financial out­standing - The Federal Court of Canada, Trial Division, found that there was no abuse of process - There was no evidence to support the purpose of the prosecution alleged by the plaintiffs - The routine audit process was underway before any special investigation was commenced for possible criminal prosecution - The criminal investi­gation went forward quite independently on reasonable and probable grounds - See paragraphs 62 and 63.

Torts - Topic 9152

Duty of care - Particular relationships - Claims against public officials - Adminis­trative misfeasance or nonfeasance - [See Crown - Topic 1561 ].

Torts - Topic 9166

Duty of care - Particular relationships - Claims against public officials - Depriva­tion of statutory benefits - In 1987 Olympia and its principal, David, were charged with 73 counts under the Excise Tax Act, but all charges were either stayed or withdrawn - They sued Canada, based on the actions of three Excise employees for, inter alia, depriving the plaintiffs of a statutory benefit pursuant to s. 46 of the Act (Federal Sales Tax deduction rate) - The Federal Court of Canada, Trial Divi­sion, held, inter alia, that there was no known tort of deprivation of statutory benefits - See paragraphs 81 and 82.

Cases Noticed:

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161; 60 D.L.R.(4th) 609, refd to. [para. 51, foot­note 8].

Hijos (Jose Pereira E) S.A. et al. v. Canada (Attorney General), [1997] 2 F.C. 84; 126 F.T.R. 167 (T.D.), refd to. [para. 53, foot­note 9].

Roncarelli v. Duplessis (1959), 16 D.L.R.(2d) 689 (S.C.C.), refd to. [para. 57, footnote 11].

R. v. Saplys (L.) (1999), 90 O.T.C. 129 (Gen. Div.), refd to. [para. 61, foot­note 12].

Gershman v. Vegetable Producers' Market­ing Board (Man.) (1976), 69 D.L.R.(3d) 114 (Man. C.A.), refd to. [para. 66, footnote 13].

Francoeur et al. v. Canada (1994), 78 F.T.R. 109 (T.D.), refd to. [para. 67, footnote 14].

Reynen v. Canada et al. (1993), 70 F.T.R. 158 (T.D.), revd. in part (1995), 184 N.R. 350 (F.C.A.), refd to. [para. 75, footnote 17].

Gold v. Canada (1987), 11 F.T.R. 310 (T.D.), refd to. [para. 78, footnote 18].

Canada Cement LaFarge Ltd. et al. v. British Columbia Lightweight Aggregate Ltd. et al., [1983] 1 S.C.R. 452; 47 N.R. 191; 145 D.L.R.(3d) 385, refd to. [para. 79, footnote 19].

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425; 143 D.L.R.(3d) 9, refd to. [para. 82, footnote 22].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1; 56 C.C.C.(3d) 65; 77 C.R.(3d) 1; [1990] 4 W.W.R. 481, refd to. [para. 86, footnote 23].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2; 58 D.L.R.(4th) 577; 25 C.P.R.(3d) 417, refd to. [para. 87, footnote 24].

MacPhee et al. v. Pulpwood Marketing Board (N.S.) et al. (1989), 88 N.S.R.(2d) 345; 225 A.P.R. 345 (C.A.), leave to appeal refused (1989), 102 N.R. 400; 93 N.S.R.(2d) 270; 242 A.P.R. 270 (S.C.C.), refd to. [para. 88, footnote 25].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; 24 D.L.R.(4th) 536; 69 B.C.L.R. 145; 18 C.R.R. 30; 36 M.V.R. 240; 48 C.R.(3d) 289; 23 C.C.C.(3d) 289; [1986] 1 W.W.R. 481, refd to. [para. 88, footnote 26].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 92, footnote 28].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 92, foot­note 30].

Times Square Book Store, Re (1985), 10 O.A.C. 105; 21 C.C.C.(3d) 503 (C.A.), refd to. [para. 94, footnote 31].

R. v. Smith (M.H.), [1989] 2 S.C.R. 1120; 102 N.R. 205; 63 Man.R.(2d) 81; 52 C.C.C.(3d) 97, refd to. [para. 98, foot­note 32].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241; 71 C.C.C.(3d) 1, refd to. [para. 98, footnote 33].

R. v. Rogalsky (E.J.) et al., [1995] 4 S.C.R. 48; 189 N.R. 82; 137 Sask.R. 230; 107 W.A.C. 230, refd to. [para. 99, footnote 34].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81; 59 C.C.C.(3d) 449; 79 C.R.(3d) 273; 49 C.R.R. 1; 74 D.L.R.(4th) 355; 75 O.R.(2d) 673, refd to. [para. 100, footnote 35].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321; [1990] 1 W.W.R. 577; 64 D.L.R.(4th) 577; 71 Alta. L.R.(2d) 273; 45 C.R.R. 1, refd to. [para. 105, footnote 38].

Andrews v. Law Society of British Colum­bia, [1989] 1 S.C.R. 143; 91 N.R. 255; [1989] 2 W.W.R. 289; 56 D.L.R.(4th) 1; 34 B.C.L.R.(2d) 273; 36 C.R.R. 193; 25 C.C.E.L. 255, refd to. [para. 106, foot­note 39].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253, refd to. [para. 106, foot­note 39].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 106, footnote 39].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 86]; sect. 8 [para. 91]; sect. 11, sect. 12 [para. 97]; sect. 15(1) [para. 104].

Excise Tax Act, R.S.C. 1985, c. E-15, sect. 46 [para. 81].

Counsel:

Mary David, on her own behalf;

Brian McPhadden, for the defend­ant.

Solicitors of Record:

Brian McPhadden, Toronto, Ontario, for the defendant.

This action was heard before MacKay, J., of the Federal Court of Canada, Trial Divi­sion, who delivered the following judgment on March 31, 1999 and filed written reasons on April 8, 1999.