Date: 20050203
Docket: A-445-04
Citation: 2005 FCA 49
CORAM: LÉTOURNEAU J.A.
BETWEEN:
HOWARD CAMPBELL
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Ottawa, Ontario, on February 3, 2005.
Judgment delivered at Ottawa, Ontario, on February 3, 2005.
REASONS FOR ORDER BY: SEXTON J.A.
CONCURRED IN BY: LÉTOURNEAU. J.A.
NADON J.A.
Date: 20050203
Docket: A-445-04
Citation: 2005 FCA 49
CORAM: LÉTOURNEAU J.A.
BETWEEN:
HOWARD CAMPBELL
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
[1] These proceedings commenced with the appellant filing a Notice of Appeal for the 2002 taxation year in the Tax Court of Canada. The Notice of Appeal included numerous documents containing lewd and offensive material which was unrelated to the appellant's 2002 tax year. The Notice of Appeal while it refers to the 2002 taxation year does not indicate any grounds of appeal or relief sought.
[2] At the hearing before the Tax Court on July 23, 2004 the appellant brought a motion requesting "an order of seizure of the assets of terrorists and terrorists' organizations operating in Canada". This motion was said to be invoked pursuant to the PROCEEDS OF CRIME (MONEY LAUNDERING) AND TERRORIST FINANCING ACT. The supporting affidavit sworn by the appellant contained as an exhibit photocopies of the business cards of over 60 unrelated individuals.
[3] At the tax hearing the respondent brought a motion to have the appeal quashed because it did not meet the statutory pre-condition in ss. 169(1) of the Income Tax Act insofar as the appellant had not filed an income tax return or been assessed for the 2002 taxation year and it was the respondent's position therefore that the Court had no jurisdiction to proceed.
[4] By judgment dated July 30, 2004 the Tax Court dismissed the appellant's appeal to the Tax Court stating that the court had no jurisdiction over the subject matter of the appeal.
[5] The appellant filed a Notice of Appeal to this Court on September 2, 2004 alleging that the Tax Court had erred in law in not stamping his draft affidavit as having been received by the Tax Court of Canada and in permitting the respondent to bring a motion before the Court at that time.
[6] Subsequent to the filing of the Notice of the Appeal the appellant served and filed a series of motions. Four of those motions have come before me. In the first of these motions dated December 6, 2004 the appellant asks for an order compelling Canada Customs and Revenue Agency (CCRA) to issue requirements to provide information and documents under s. 231.2 of the Income Tax Act to a number of individuals whose names appear in an e-mail and in business cards attached as exhibits to the affidavit of the appellant and requiring those individuals to provide information about their tax status to this Court. The e-mail attached to his affidavit contains sexually explicit references to a number of Canadian and international public figures. I have dismissed this motion on the basis that the information sought is totally irrelevant to the appeal and is vexatious.
[7] On December 17, 2004 the appellant served and filed another motion in the appeal. In this motion, the appellant sought an order compelling the CCRA to require the employers of certain persons named in the appellant's affidavit to provide employment information about the named persons to the Federal Court of Appeal. The exhibits to the affidavits contains sexually explicit references to a number of public figures. I dismissed this motion on the basis that it was completely irrelevant to the appeal and is vexatious.
[8] On January 4, 2005 the appellant served another motion in this appeal and in this motion sought an order compelling the CCRA to issue a "notice of demand" under s. 231.2 of the Income Tax Act to a number of individuals to produce their accounting records. These individuals include the Secretary General of the United Nations and former Prime Minister Jean Chrétien. The exhibits to the affidavits contain sexually explicit references to a number of public figures. I dismissed this motion on the basis that none of the material sought was relevant to the appeal and is vexatious.
[9] On January 17, 2005 the appellant brought a motion for an order telling Canada Customs and Revenue Agency to issue a notice of demand under s. 231.2 of the Income Tax Act to a number of individuals in and out of Canada making similar allegations as in the previous motions. I dismissed this motion on the basis that it was irrelevant and vexatious.
[10] The respondent has brought a motion to have the appeal quashed or in the alternative dismissed. The respondent is also seeking an order under s. 40 of the Federal Courts Act prohibiting the appellant from initiating any other proceeding in this Court without leave of the Court.
[11] Section 169(1) of the Income Tax Act provides the statutory prerequisites for an appeal to the Tax Court and states that a taxpayer may appeal an assessment to the Tax Court where the taxpayer has served a notice of objection to an assessment.
[12] The Tax Court has jurisdiction to hear appeals from assessments of income tax under the Income Tax Act and to determine whether those assessments are correct. The appellant's Notice of Appeal to the Tax Court does not raise any grounds for appeal from any assessment of income tax and does not contain any reference to an assessment of income tax. At the hearing before the Tax Court and in his appeal to this Court, the appellant has requested that this matter be heard pursuant to the PROCEEDS OF CRIME AND TERRORIST FINANCING ACT. Further the appellant has not raised any grounds in his appeal to this Court suggesting that the Minister of National Revenue has issued to him an assessment of tax that is incorrect. Indeed the appellant had not been assessed for his 2002 tax year at the time he filed his appeal to the 2002 tax year.
[13] In my view, neither of the appellant's grounds in his purported appeal is within this Court's jurisdiction on an appeal from the Tax Court. The appellant had not, at the date of his appeal to the Tax Court, been assessed for the 2002 taxation year and so there can be no appeal relating to that assessment. With regard to the second item of relief sought by the appellant, the Tax Court has jurisdiction only to hear matters under statutes enumerated under s. 12 of the Tax Court of Canada Act. The PROCEEDS OF CRIME (MONEY LAUNDERING) AND TERRORIST FINANCING ACT is not one of those statutes. Consequently neither the Tax Court nor this Court on an appeal from the Tax Court have jurisdiction over the subject matter of this appeal.
[14] For these reasons alone the appeal should be quashed.
[15] Section 40 of the Federal Courts Act permits the Court to order that a proceeding instituted by a person in this Court may not be continued in a situation where the person has conducted the proceeding in a vexatious manner.
[16] The Court will consider a number of factors in determining whether a proceeding has been conducted in a vexatious manner including whether the proceedings contain extreme and unsubstantiated allegations. In my view the material filed by the appellant in this case can be so described. The irrelevant, lewd and offensive nature of the material filed by the appellant is sufficient for this Court to characterize the entire proceeding as vexatious and the appellant's repeated motions indicate that he is utilizing the Court's process as a means to obtain a forum to have his personal theories heard. The allegations made by the appellant in his motions include vile language and extremely offensive allegations about public figures.
[17] In my opinion, therefore the entire proceeding can be categorized as being vexatious and therefore the appeal can be quashed on this ground.
[18] The respondent also seeks an order under s. 40 of the Federal Courts Act that the appellant may not initiate any other proceeding in the Federal Court of Appeal without leave of the Court.
[19] I have reviewed the authorities provided by the respondent in support of this request and note that all of them relate to situations where an alleged vexatious litigant had commenced a number of different actions, quite often in different courts, as a result of which an order was issued under s. 40 of the Federal Courts Act. I have not been directed to any case where a person has been declared to be a vexatious litigant arising out of the actions in only one proceeding. While I am of the view that ss. 40(1) of the Federal Courts Act can be interpreted so as to permit an order being issued against such a person preventing that person from bringing further proceedings in the court, in my view such an order cannot be made lightly: R. v. Olympia Interiors 2004 FCA 195 per Stone J.A..
The power conferred on the Court by subsection 40(1) of the Act is, of course, most extraordinary, so much so that it must be exercised sparingly and with the greatest of care. In a society such as ours, the subject is generally entitled to access the courts with a view of vindicating his or her rights. This concern was obviously in the mind of the legislators, seeing that some balance is built into section 40 by allowing proceedings to be instituted or combined with leave of the Court.
[20] In Mascan Corp. v. French (1988) 49 DLR (4th) 434 the Ontario Court of Appeal held that it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented.
[21] In Canada Post v. Varma (2000) 192 FTR 278 Dawson J. found that evidence before the Court established that in the proceedings brought by Mr. Varma in that court he had attempted to re-litigate issues and frivolous appeals and requests for reconsideration had been instituted. Dawson J. further said "the evidence demonstrates without doubt that Mr. Varma has persistently instituted vexatious proceedings or has conducted a proceeding in a vexatious manner".
[22] In conclusion I would say that while I have no doubt that the proceedings in the tax appeal before me are vexatious I would have hesitation in the circumstances in declaring the appellant to be a vexatious litigant so that he could bring no further proceedings in this Court. I would also say however, that were his actions to be repeated, there might well be grounds for such an order being made in the future.
[23] In the result, the appeal will be quashed. As no costs were requested, none will be ordered.
"J. EDGAR SEXTON"
J.A.
"I agree
Gilles Létourneau J.A."
"I agree
M. Nadon J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-445-04
STYLE OF CAUSE: HOWARD CAMPBELL V. HER MAJESTY THE QUEEN
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: SEXTON J.A.
CONCURRED IN BY: LÉTOURNEAU & NADON JJ.A.
DATED: FEBRUARY 3, 2005
WRITTEN REPRESENTATIONS BY:
|
Howard Campbell |
FOR THE APPELLANT, ON HIS OWN BEHALF
|
|
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
Howard Campbell, Delta, British Columbia |
FOR THE APPELLANT
|
|
John H. Sims, Deputy Attorney General of Canada |
FOR THE RESPONDENT |