http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/181561/index.do#
Tuccaro v. Canada (October 24, 2016 – 2016 FCA 259, Gauthier (author), de Montigny, Gleason JJ. A.).
Précis: This is the fourth time this case has been blogged on this site. In a nutshell, Mr. Tuccaro is asserting a treaty right to a tax exemption pursuant to Treaty 8 of 1899. The Crown is resisting the claim based in part on issue estoppel arising from prior decisions of the Federal Court of Appeal. Mr. Tuccaro moved unsuccessfully in the Tax Court to strike those portions of the Crown’s pleadings dealing with issue estoppel. His appeal to the Federal Court of Appeal was dismissed on the basis that it was not clear and obvious that the Crown could not succeed at trial based on issue estoppel. Costs of $3,000, all inclusive, were awarded to the Crown.
Decision: While the decision is lengthy and procedurally complex it ultimately boils down to one paragraph:
[32] In this case, if Mr. Tuccaro’s motion is dismissed, he will for the same reasons discussed earlier, be entitled to argue before the trial judge that the Crown is estopped from raising this defence of issue estoppel. This means that the trial judge will be in a position to exercise his or her own discretion in respect of this estoppel argument (as well as in respect of the Crown defence based on issue estoppel). Thus, in my view, I need only to assess whether it is plain and obvious that such discretion could not be exercised in favour of the Crown as argued by Mr Tuccaro. I have no hesitation in concluding that this is not so. Indeed, in my opinion, after a review of all the relevant circumstances, there is an arguable case that the discretion should be exercised in favour of the Crown because, among other things, the Crown never had the chance to present its argument and to file evidence on the issue of “privity”.