Ross v. Canada, (2003) 236 F.T.R. 170 (TD)

• Court: Federal Court (Canada)
• Case Date: April 29, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2003), 236 F.T.R. 170 (TD)

Ross v. Can. (2003), 236 F.T.R. 170 (TD)

MLB headnote and full text

Temp. Cite: [2003] F.T.R. TBEd. MY.042

In The Matter Of the Income Tax Act;

And In The Matter Of an assessment or assessments by the Minister of National Revenue under one or more of the Income Tax Act, Canada Pension Plan, Employment Insurance Act, the Income Tax Act, against

Glenn A. Ross (sometimes known as Glenn Alexander Ross) 12135-229th Street, Maple Ridge, British Columbia, V2X 7M9

Glenn A. Ross (applicant) v. Her Majesty the Queen (respondent)

(ITA-8972-99; 2003 FCT 534)

Indexed As: Ross v. Canada

Federal Court of Canada

Trial Division

Hargrave, Prothonotary

April 29, 2003.

Summary:

Ross moved pursuant to Federal Court Rules 398 and 399 to set aside a Writ of Seizure and Sale, which was founded on a certificate issued pursuant to s. 223(2) of the Income Tax Act.

A Prothonotary of the Federal Court of Canada, Trial Division, dismissed the motion. The Prothonotary held that the matter was res judicata, that the relief sought could not be obtained by a motion under rules 398 and 399 and that, in any event, there was no evidence to support Ross's substantive argument.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - Ross moved to set aside a Writ of Seizure and Sale, which was founded on a certificate issued pursuant to s. 223(2) of the Income Tax Act based on the 1989 and 1990 taxation years - A Prothonotary of the Federal Court of Canada, Trial Division, held that the matter was res judicata - Ross had already applied for and received judicial review of a May 16, 2001 requirement to pay issued for unpaid 1989 and 1990 taxes - That judicial review application had included requests for declarations that the Writ of Seizure and Sale giving rise to this proceeding and the May 16, 2001 requirement to pay be declared invalid, quashed or set aside, which was the same relief sought in the present proceeding - See paragraphs 9 to 10.

Execution - Topic 1008

Writ of execution - Setting aside or lifting - Ross moved pursuant to Federal Court Rules 398 and 399 to set aside a Writ of Seizure and Sale, which was founded on a certificate issued pursuant to s. 223(2) of the Income Tax Act - A Prothonotary of the Federal Court of Canada, Trial Division, held that the relief sought could not be obtained by a motion under rules 398 and 399 - If there was any relief available, it had to be sought by a judicial review proceeding pursuant to s. 18.1 of the Federal Court Act - Second, rule 399 applied to the setting aside or variance of orders, not writs of execution - Third, a stay pursuant to rule 398 was not available - See paragraphs 11 to 12.

Practice - Topic 5948

Judgments and orders - Enforcement of orders - Stay of - [See Execution - Topic 1008 ].

Practice - Topic 6245

Judgments and orders - Setting aside orders - General - [See Execution - Topic 1008 ].

Practice - Topic 7767

Costs - Special orders - Abuse of process - Ross moved to set aside a Writ of Seizure and Sale, which was founded on a certificate issued pursuant to s. 223(2) of the Income Tax Act - A Prothonotary of the Federal Court of Canada, Trial Division, dismissed the motion on the basis, inter alia, that the matter was res judicata in light of an earlier application brought by Ross for judicial review of a requirement to pay - The Prothonotary was reluctant to award solicitor-client costs against Ross - However, the Prothonotary stated that Ross should be aware that having sought, as part of his relief in the earlier judicial review, exactly the same relief that was sought in the present proceeding, there was an abuse which deserved some censure - The Prothonotary set a lump sum for costs and disbursements at $1,200 payable forthwith - See paragraphs 15 to 24.

Restitution - Topic 62

Unjust enrichment - What constitutes - [See Restitution - Topic 125 ].

Restitution - Topic 125

Unjust enrichment - Remedies - Subrogation - Ross moved to set aside a Writ of Seizure and Sale, which was founded on a certificate issued pursuant to s. 223(2) of the Income Tax Act - Ross argued that the Minister of National Revenue had made payments to the province of British Columbia against the debts he owed to the province and that as the Minister failed to obtain any assignment of the debt owed to the province, it followed that the Minister, paying as a volunteer, had no right to claim the full amount of the income tax assessed and evidenced by the certificate - A Prothonotary of the Federal Court of Canada, Trial Division, rejected the argument - The Prothonotary referred to the concept of unjust enrichment and the equitable doctrine of subrogation and concluded that it was simplistic to believe that the mere fact of a payment of a sum to the province of British Columbia by the Federal Government pursuant to a federal/provincial tax collection arrangement either relieved Ross from payment of the provincial portion of his income tax or made him invulnerable to any collection of the provincial share of taxes by the Federal Government - Ross misunderstood the tax relationship between the provincial and federal governments, which was a delegation of the right to collect taxes - See paragraphs 4 to 8 and 13 to 14.

Cases Noticed:

Marcel Grande Cirque Inc. v. Minister of National Revenue (1995), 107 F.T.R. 18 (T.D.), refd to. [para. 1].

Nelson v. Minister of National Revenue, [1996] 3 C.T.C. 342 (F.C.T.D.), refd to. [para. 1].

Consumers Glass Co. v. Canada (1988), 21 F.T.R. 131 (T.D.), revd. (1990), 107 N.R. 156 (F.C.A.), refd to. [para. 7].

Air Canada and Pacific Western Airlines Ltd. v. British Columbia, [1989] 1 S.C.R. 1161; 95 N.R. 1; 59 D.L.R.(4th) 161, refd to. [para. 7].

Michelin Tires (Canada) Ltd. v. Minister of National Revenue (Customs and Excise) (1998), 158 F.T.R. 101 (T.D.), refd to. [para. 7].

Michelin Tires (Canada) Ltd. v. Minister of National Revenue (Customs and Excise) (2001), 271 N.R. 183 (F.C.A.), refd to. [para. 8].

Orakpo v. Manson Investments, [1978] A.C. 95 (H.L.), refd to. [para. 9].

Doering v. Grandview (Town), [1976] 2 S.C.R. 621; 7 N.R. 299; [1976] 1 W.W.R. 388, refd to. [para. 9].

Henderson v. Henderson (1843), 3 Hare 100, refd to. [para. 9].

Martelli v. Martelli (1983), 148 D.L.R.(3d) 746 (B.C.C.A.), refd to. [para. 9].

Yat Tung Co. v. Dao Heng Bank (P.C.), [1975] A.C. 581 (P.C.), refd to. [para. 9].

Greenhalgh v. Mallard, [1947] 2 All E.R. 255 (C.A.), refd to. [para. 9].

Ross v. Canada Customs and Revenue Agency, [2002] D.T.C. 6884; 218 F.T.R. 276 (T.D.), refd to. [para. 10].

Canada v. Rumball, [1981] C.T.C. 9 (F.C.T.D.), refd to. [para. 12].

Piccott v. Minister of National Revenue (2002), 224 F.T.R. 112 (T.D.), refd to. [para. 12].

Markevich v. Minister of National Revenue (2003), 300 N.R. 321 (S.C.C.), refd to. [para. 13].

Schmidt v. Canada et al., [2002] B.C.T.C. 1738 (S.C.), refd to. [para. 17].

Leung v. Leung (1993), 77 B.C.L.R.(2d) 305 (S.C.), refd to. [para. 18].

Houweling Nurseries Ltd. v. Fisons Western Corp. (1988), 37 B.C.L.R.(2d) 2 (C.A.), leave to appeal denied (1988), 89 N.R. 398 (S.C.C.), refd to. [para. 20].

Fullerton et al. v. Matsqui (District) et al. (1992), 19 B.C.A.C. 284; 24 W.A.C. 284; 74 B.C.L.R.(2d) 311 (C.A.), refd to. [para. 21].

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; [1993] 8 W.W.R. 513; 108 D.L.R.(4th) 193; 84 B.C.L.R.(2d) 1; 18 C.R.R.(2d) 41; 49 R.F.L.(3d) 117, refd to. [para. 22].

Minister of National Revenue v. Hassanali Estate (1996), 197 N.R. 51 (F.C.A.), refd to. [para. 22].

Bland v. National Capital Commission, [1993] 1 F.C. 541; 151 N.R. 10 (F.C.A.), refd to. [para. 22].

Kajat v. Ship Arctic Taglu (1997), 145 F.T.R. 102 (T.D.), refd to. [para. 23].

Statutes Noticed:

Federal Court Rules, 1998, rule 399 [para. 12].

Counsel:

Glen A. Ross, on his own behalf;

David Jacyk, for the respondent.

Solicitors of Record:

Morris Rosenberg, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent.

This motion was dealt with in writing without the appearance of parties by Hargrave, Prothonotary of the Federal Court of Canada, Trial Division, who delivered the following decision on April 29, 2003.