POMERLEAU v CANADA (REVENUE AGENCY), 2017 ABQB 123
3.61: Request for particulars
4.16: Dispute resolution processes
6.37: Notice to admit
7.3: Summary Judgment (Application and decision)
10.29: General rule for payment of litigation costs
The self-represented Plaintiff had filed two Actions against the Canada Revenue Agency. The Canada Revenue Agency had applied for Summary Dismissal pursuant to Rule 7.3 on the basis that the Plaintiff’s Claims had not been brought in the correct forum, and that they should have been brought in front of the Tax Court of Canada; and alternatively, that the Plaintiff’s claims had no merit and had characteristics of Organized Pseudolegal Commercial Argument (OPCA) schemes.
Master Schulz outlined the history of the two Actions, which were largely similar. Throughout the litigation, the Plaintiff had filed a number of documents, including an Application made under Rule 3.61, which provides that a party may serve a Request for Particulars when served with a pleading, along with a supporting Affidavit. Later, the Plaintiff filed an Application under Rule 4.16, the Dispute Resolution Processes Rule which provides that it is the responsibility of the parties to manage their dispute and that this includes good faith participation in one of the dispute resolution processes listed under the Rule with respect to all or any part of the Action. Master Schulz noted that the Application under Rule 4.16 was unnecessary as that Rule has been suspended due to a lack of judicial resources.
The Plaintiff also filed two Notices to Admit Facts pursuant to Rule 6.37. Master Schulz noted that Rule 6.37 provides that a party to a lawsuit who receives a Notice to Admit Facts is presumed to agree with an alleged fact in that notice unless it denies that fact or objects to that fact. The Plaintiff had argued that, legally, silence meant agreement. Master Schulz stated that silence as agreement is not a principle of common law, but Rule 6.37 which was law put in place by the Alberta Legislature does provide that silence, in the face of a Notice to Admit Facts, does constitute agreement to those facts.
Master Schulz set out the test for Summary Dismissal under Rule 7.3: Summary Judgment may be granted if a “disposition that is fair and just to both parties can be made on the existing record by using that alternative method for adjudication”; this is a “question of merit”. Both parties must put their best foot forward. Master Schulz held that the Court of Queen’s Bench did have jurisdiction to hear the Plaintiff’s claims, and that the Tax Court of Canada does not have the sole jurisdiction to assess the amount of tax due from a taxpayer, as well as the constitutional validity of tax legislation. However, Master Schulz granted the Summary Dismissal Application on the basis that the Plaintiff’s claims had no merit and were an attempt to implement legally incorrect OPCA schemes.
Master Schulz also considered Rule 10.29(1), which provides that a successful party to an Application is entitled to a Costs award against the unsuccessful party. Master Schulz noted that because of the nature of the OPCA litigation, the Court could award a heavy Costs award against the Plaintiff. However, Master Schulz determined that the Court should only order Costs pursuant to Schedule C, which was still significant. Master Schulz took the unusual step of not awarding punitive Costs as against the Plaintiff because he had conducted himself in a cooperative and constructive manner.View CanLII Details