Ross v. Minister of National Revenue, 2003 FC 902

• Court: Federal Court (Canada)
• Case Date: July 07, 2003
• Jurisdiction: Canada (Federal)
• Citations: 2003 FC 902;(2003), 244 F.T.R. 265 (FC)

Ross v. MNR (2003), 244 F.T.R. 265 (FC)

MLB headnote and full text

Temp. Cite: [2003] F.T.R. TBEd. AU.007

Glenn Alexander Ross (applicant) v. Her Majesty the Queen in Right of Canada (respondent)

(T-994-03; 2003 FC 902)

Indexed As: Ross v. Minister of National Revenue

Federal Court

Hargrave, Prothonotary

July 21, 2003.

Summary:

Ross brought an application for judicial review to prohibit the Minister of National Revenue from enforcing collection proceedings arising from Ross's 1989 and 1990 taxation years. To achieve that result, Ross sought declarations that the Minister had no right to certify the tax debt, that the tax certificate was invalid and that the registration of the certificate in the Federal Court was a nullity. The Crown moved to strike out the application on the ground of res judicata.

A Prothonotary of the Federal Court struck out Ross's application based on the doctrine of res judicata. The Prothonotary awarded solicitor and client costs to the Crown and ordered that Ross be barred from commencing further proceedings in the court until he had paid various outstanding costs orders.

Administrative Law - Topic 24

Abuse of process - What constitutes - Ross brought an application for judicial review to prohibit the Minister of National Revenue from enforcing collection proceedings arising from Ross's 1989 and 1990 taxation years - Ross had not appealed from his assessments for those years in accordance with the provisions of the Income Tax Act - A Prothonotary of the Federal Court struck out Ross's application based on the doctrine of res judicata where the issue of the validity of the tax debt had been decided in earlier litigation - The Prothonotary also held that the application should be struck out for want of jurisdiction and as an abuse in that it was an attempt to attack tax debt assessments for 1989 and 1990 and the tax certificate by bringing judicial review proceedings over three years after the certificate was registered with the Federal Court in 1999 - See paragraph 8.

Courts - Topic 2015

Jurisdiction - Controlling abuse of its process - [See Practice - Topic 47 ].

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - Ross brought an application for judicial review to prohibit the Minister of National Revenue from enforcing collection proceedings arising from Ross's 1989 and 1990 taxation years - To achieve that result, Ross sought declarations that the Minister had no right to certify the tax debt, that the tax certificate was invalid and that the registration of the certificate in the Federal Court was a nullity - A Prothonotary of the Federal Court struck out Ross's application based on the doctrine of res judicata where the issue of the validity of the tax debt had been decided in earlier litigation brought by Ross - See paragraphs 9 to 20.

Practice - Topic 47

Actions - Commencement of - Bars - Conditions imposed on bringing further proceedings - A Prothonotary of the Federal Court struck out Ross's application for judicial review based on the doctrine of res judicata where the issues raised had been decided in earlier litigation brought by Ross - The Prothonotary awarded solicitor and client costs to the respondent Crown - The Prothonotary considered that there had been several layers of litigation with the same defendant being dragged through various unsuccessful proceedings and that the proceedings had been a clear abuse - The Prothonotary also ordered that Ross be barred from commencing further proceedings in the court until he had paid various outstanding costs orders - The order was not a complete ban on the use of the Federal Court as might flow from a proceeding under s. 40 of the Federal Court Act (the vexatious litigant provision) - Rather, it was based on the court's implied jurisdiction to shield its process from abuse and make its jurisdiction work - See paragraphs 21 to 25.

Practice - Topic 6933

Costs - General principles - Failure to satisfy costs judgment - Effect of - [See Practice - Topic 47 ].

Practice - Topic 7457

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Where claim or defence irrelevant, scandalous or without merit - [See Practice - Topic 47 ].

Cases Noticed:

Ross v. Canada Customs and Revenue Agency (2002), 218 F.T.R. 276; 2002 D.T.C. 6884 (T.D.), refd to. [para. 5].

Optical Recording Co. v. Minister of National Revenue (1990), 116 N.R. 200; 90 D.T.C. 6647 (F.C.A.), refd to. [para. 8].

Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al., [1995] 1 F.C. 588; 176 N.R. 48 (F.C.A.), refd to. [para. 9].

Pharmacia Inc. et al. v. Canada (Minister of National Health and Welfare) - see Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al.

Markevich v. Minister of National Revenue, [2001] 3 F.C. 449; 270 N.R. 275 (F.C.A.), refd to. [para. 10].

Huseyinov et al. v. Minister of Employment and Immigration (1994), 174 N.R. 233 (F.C.A.), refd to. [para. 10].

Ross v. Canada (2003), 236 F.T.R. 170 (T.D.), refd to. [para. 13].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 14].

Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 835 (H.L.), refd to. [para. 14].

Martelli v. Martelli, (1983) 148 D.L.R.(3d) 746 (B.C.C.A.), refd to. [para. 15].

Henderson v. Henderson (1843), 3 Hare 100; 67 E.R. 313, refd to. [para. 15].

Doering v. Grandview (Town), [1976] 2 S.C.R. 621; 7 N.R. 299, refd to. [para. 15].

Yat Tung Co. v. Dao Heng Bank, [1975] A.C. 581 (P.C.), refd to. [para. 16].

Greehalgh v. Mallard, [1947] 2 All E.R. 255 (C.A.), refd to. [para. 16].

MacKinnon v. Minister of National Revenue (2003), 303 N.R. 109; 2003 FCA 158, refd to. [para. 17].

Schmidt v. Canada et al., [2002] B.C.T.C. 1738 (S.C.), refd to. [para. 22].

Ceminchuk v. IBM Canada Ltd. (1995), 101 F.T.R. 38; 62 C.P.R.(3d) 546 (T.D.), refd to. [para. 24].

New Brunswick Electric Power Commission v. Maritime Electric Co. and National Energy Board, [1985] 2 F.C. 13; 60 N.R. 203, refd to. [para. 24].

Canadian Human Rights Commission v. Canadian Liberty Net et al., [1998] 1 S.C.R. 626; 224 N.R. 241, refd to. [para. 24].

Nu-Pharm Inc. v. Canada (Attorney General) et al., [2000] 1 F.C. 463; 247 N.R. 227 (F.C.A.), refd to. [para. 24].

Counsel:

Glenn Alexander 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 heard on July 7, 2003, before Hargrave, Prothonotary of the Federal Court, who delivered the following decision on July 21, 2003.