Date: 19990621
Docket: T-724-99
Toronto, Ontario, Monday the 21st day of June, 1999
PRESENT: The Honourable Madame Justice Reed
BETWEEN:
MINISTER OF NATIONAL REVENUE
Applicant
(respondent to the motion)
- and -
JOHANNIS KLUNDERT
Respondent
(applicant for the motion)
REASONS FOR ORDER AND ORDER
Upon motion dated the 28th May, 1999, on behalf of the Respondent, for:
(a) an order reviewing and setting aside the ex parte order of Madame Justice
Tremblay-Lamer made the 26th day of April, 1999 in this matter, pursuant to
section 225.2(8) of the Income Tax Act and Rule 399 of the Federal Court Rules;
| (b) an order quashing the search warrants of the respondent's home and business dated March 25, 1999; and |
(c) an order excluding any evidence obtained as a result of the said search warrants,
pursuant to s.24(2) of the Canadian Charter of Rights and Freedoms.
(d) such further and other relief as the Court may allow.
(Reasons attached)
IT IS HEREBY ORDERED THAT:
The motion is dismissed. The applicant (respondent to the motion) shall recover his costs from the respondent (applicant for the motion).
"B. Reed"
Judge
REASONS FOR ORDER
(revised version of oral reasons)
REED, J.:
[1] It is agreed that I do not have jurisdiction to set aside the warrant issued by the Ontario J.P. My jurisdiction is limited to a consideration of Mde Justice Tremblay-Lamer's order, issued pursuant to s. 225.1 of the Income Tax Act (the jeopardy order).
[2] I am not persuaded that there was a material misstatement, or material non-disclosure in the affidavits relied upon by her in issuing the order.
[3] With respect to the assertion that the case against the applicant for failure to comply with a Requirement to Provide Information and Documents was dismissed because of the non-attendance of Revenue Canada's employees, at the required time and place, and therefore the plaintiff could not be said to have failed to comply with the Requirement Notice, the statement in the affidavits that there was a failure to comply, as with others set out in the affidavits, must be read in context. The case against the applicant was dismissed on a technicality. The applicant had repeatedly taken the position that Revenue Canada was without jurisdiction to collect income tax from him, that he would not co-operate with them, that he refused to provide them with the documents they were seeking. In that context the statements in the affidavits are not misleading.
[4] With respect to the statements that the applicant had given instructions to his bank to close his Visa account, that he was severing all relationships with Lens Crafters and was terminating his lease, these were all true statements. While he now states that these actions were being taken for business reasons, there is other evidence in the relevant affidavit material that supports a conclusion that the applicant was refusing to pay taxes, refusing to co-operate with Revenue Canada, and at the same time moving his assets out of the country. There was no material misrepresentation, or material non-disclosure.
[5] With respect to the letter written by the applicant to his counsel, which it is claimed was privileged, and the statement in the affidavit that counsel was associated with an organization whose purpose is to resist the payment of federal income tax, even if the first is privileged and the second is incorrect, neither are important in the context of the affidavits and the evidence as a whole. Neither could support a conclusion that there had been a serious non-disclosure or a material misrepresentation.
[6] The affidavit evidence before Mde Justice Tremblay-Lamer would lead a reasonable person to conclude that the applicant was refusing to pay his taxes, refusing to co-operate with Revenue Canada, and at the same time removing all his assets from the jurisdiction. Thus a conclusion that delay in collection would prejudice Revenue Canada's ability to collect the taxes owed, was well-founded.
TORONTO, ONTARIO
June 21, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-724-99
| STYLE OF CAUSE: MINISTER OF NATIONAL REVENUE |
| - and - |
| JOHANNIS KLUNDERT |
DATE OF HEARING: MONDAY, JUNE 21, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED J.
DATED: MONDAY, JUNE 21, 1999
APPEARANCES: Ms. N. Arnold
For the Applicant
Mr. D. Christie
For the Respondent
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General
of Canada
For the Applicant
| Douglas Christie |
Barristers & Solicitors
810 Coutney St.
Victoria, BC
V8W 1C4
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990622
Docket: T-724-99
Between:
MINISTER OF NATIONAL REVENUE
Applicant
| - and - |
JOHANNIS KLUNDERT
Respondent
REASONS FOR ORDER AND ORDER