Cheikhezzein v. R. – TCC: Court Strikes Out Portions of Notice of Appeal Attacking Ministerial Conduct

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Cheikhezzein v. The Queen[1] (November 1, 2013) is another in a string of decisions involving attacks in the Tax Court on what is sometimes characterized as ministerial misconduct.  This decision is a GST appeal but the same principles obtain in income tax appeals.  In this decision the court has conveniently set out the impugned provisions of the Notice of Appeal in an appendix:

Appendix “A”

Impugned paragraphs identified in italics

49.  The issues in this Appeal are as follow:

g. Whether the Respondent has violated the Appellant’s section 8 and section 12 Charter rights;

50.  The Appellant intends to rely on Excise Tax Act generally, and specifically on sections 238 and 296, and subsections 123(1), 165(1), 240(1), 301(1.1), 301(2), 301(3), 315(1), 315(3), 317, 319, and 320. The Appellant further intends to rely on Tax Court of Canada Rules (General Procedure) generally, and specifically on Rule 147. The Appellant further intends to rely on sections 8 , 12 and 24(1) of the Canadian Charter of Rights and Freedoms. The Appellant further intends to rely on subsection 1(a) and section 2 of the Canadian Bill of Rights.

59.  The Respondent has violated the Appellant’s section 8 Charter rights against arbitrary search and seizure.

60.  The Respondent’s exercise of assessment and collection powers must not interfere with the Appellant’s rights under the Charter, and where such rights were not respected, and such interference was not justified, the Appellant is entitled to apply to the Tax Court of Canada for a remedy under section 24(1) of the Charter.

62.  The Appellant further submits that subsection 1(a) of the Canadian Bill of Rights provides individuals with the right to the enjoyment of property, and the right not to be deprived thereof except by due process of law.

63.  The Appellant submits that the Respondent’s issuance of arbitrary assessments and corresponding confiscation of the Appellant’s funds was not in accordance with due process of the law.

64.  The Appellant submits that, were due process afforded to him, the Respondent would have provided him with the opportunity to make representations in regard to the proposed assessments, prior to the assessments being issued. He further submits that, were due process afforded to him, the Respondent would have taken into account the information which the Appellant provided to her after the assessments were issued, and would have issued reassessments accordingly.

65.  The Appellant submits that he continues to be deprived of the enjoyment of his property without the benefit of due process of law, and accordingly submits that the Respondent has applied its powers granted under the Excise Tax Act in a manner contrary to section 2 of the Canadian Bill of Rights.

66.  Accordingly, the Appellant respectfully submits that the arbitrary GST/HST assessments could be vacated, in the alternative, under the authority of the Canadian Bill of Rights.

On the basis of considerable jurisprudence the court made short work of the impugned paragraphs:

[14]        The Appellant is correct that a violation of constitutional rights may very well apply to Ministerial Conduct; however, that begs the question as to this Court’s jurisdiction. This Court cannot begin the legal and factual inquiry into such an issue since it is a means without end; it is a potential right without a statutory remedy in this forum. The exclusive jurisdiction of this Court is statutory: to determine whether the taxpayer is liable for tax and the basis of its validity and correctness under the assessing sections of the relevant Acts, in this case the Excise Tax Act (the “Act”): subsection 299(4) and Section 306. That enumerated jurisdiction is exclusive, but its jurisdiction in respect of Ministerial Conduct, irrespective of the other statutes or rights invoked or violated, does not exist: Main Rehabilitation Co. v Canada, 2004 FCA 403, [2005] 1 CTC 212(FCA) at paragraphs 7 and 8; Webster v Canada, 2003 FCA 388 at paragraph 21. Moreover, this Court lacks inherent jurisdiction and has not been given statutory jurisdiction to conduct an analysis into, assess evidence of or invalidate an assessment upon Ministerial Conduct because it is irrelevant to the validity and correctness of the assessment: Ronald Ereiser v Canada, 2013 FCA 20, [2013] 3 CTC 49(FCA) at paragraphs 31 to 33.

[15]        The Court observes that the Appellant’s counsel may have conflated “abuse of process” as described in rule 53(c) as a stand alone requirement for striking the impugned pleading. Simply put, if a pleading relates to a matter which cannot succeed because the Court lacks jurisdiction, then it is the retention of those “impossibly successful” pleadings which causes the delay (rule 53(a)), is frivolous (rule 53(b)) or is abusive (rule 53(c)).

[16]        To be clear, Ministerial Conduct has no bearing, given the Tax Court of Canada’s jurisdiction, on the outcome of the appeal before the Court which, by will of Parliament, must be an inquiry and determination limited to the validity and correctness of the assessment, not the methodology of how the decision to levy an assessment began, proceeded or came to be. Remedies related to that Ministerial Conduct, if same exist, do so elsewhere.

[17]        Given this Order and its Reasons, the Court feels compelled to point out what it is not being said by the Court. Constitutional rights may be invoked before this Court when they relate to the assessment, its applicability, inequality or non-compliance (Smith). However, the impugned paragraphs in this appeal relate exclusively to Ministerial Conduct.

Comment:  This decision seem in full accord with prior Tax Court of Canada decisions.  As noted previously on this blog however the question of how and where true ministerial misconduct is to be addressed by the courts, if at all, is largely unresolved.

[1] 2013 TCC 348.