Date: 20001027
Docket: GST-41-92
BETWEEN:
OLYMPIA INTERIORS LTD.
-and-
MARY DAVID
Applicants
-and-
HER MAJESTY THE QUEEN
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] The applicants Mary David and Olympia Interiors Ltd. ask the Court for a declaration under section 17(1) of the Federal Court Act that a certificate of the Minister of National Revenue, GST-41-92, given under the Excise Tax Act, R.S.C. 1970, c. E-13 is without force and effect. The applicants rely on section 52(1) and subsection 24(1)(2) of the Charter of Rights and Freedoms.
[2] I have reviewed the documents filed with the motion.
[3] The declaratory relief sought on this motion, that the certificate bearing number GST-41-92, is of no force or effect, was previously sought by the applicants. In 1995, the applicants brought a motion to set aside the certificate. The motion was dismissed by order of Associate Chief Justice Jerome in 1996. The applicants appealed the dismissal to the Federal Court of Appeal but that appeal was dismissed on July 28, 1997, on motion brought by Her Majesty the Queen.
[4] As it is submitted by counsel for the respondents, the more recent affidavit, on which the applicants appear to rely, has been sworn by Mary David on September 22, 1997. None of the exhibits referred to in that affidavit are appended to the affidavit and do not appear elsewhere in the motion record. As counsel suggests, Rule 80(1) provides that where an affidavit refers to an exhibit, the exhibit shall be accurately identify by endorsement of the exhibit or on a certificate attached to it, signed by the person before whom the affidavit is sworn. That in itself is enough to demonstrate that the evidence contained in the body of the affidavit is inadmissible.
[5] Regarding the number of documents that are not exhibits to the affidavit of Mary David, sworn on September 22, 1997, or to any other affidavits filed, could not be filed as they were filed, those documents are appearing at tabs 5, 6, 7, 9 and 17 inclusive, 19-30 inclusive and 32-40 inclusive. Those documents cannot be legally filed before the Court.
[6] As suggested by counsel for the respondents, any claim Olympia or Mary David might have arising from the seizure of Olympia's documents, has already been litigated in the Federal Court.
[7] I have no hesitation to consider that the res judicata principle applies to this case.
[8] I have no hesitation to consider that this motion could be seen as a abuse of procedures.
[9] For these reasons this application is dismissed.
[10] Given the particular circumstances of this case, the respondents are entitled to costs on a solicitor and client scale fixed at $2500 and payable forthwith.
Pierre Blais
Judge
OTTAWA, ONTARIO
October 27, 2000