Lynch v. Canada (December 15, 2017 – 2017 FCA 248, Webb, Near, Laskin (Author) JJ. A.).
Précis: The Tax Court dismissed Mr. Lynch’s appeal on the basis of abuse of process after he refused to answer written discovery questions notwithstanding warnings from the Court at two case management hearings. Mr. Lynch appealed to the Federal Court of Appeal which upheld the Tax Court decision, finding no reversible error. The Crown did not seek costs so none were awarded.
Decision: This was simply a case where the Court of Appeal found that the Tax Court Judge had acted well within the discretionary jurisdiction conferred upon her:
 The judgment of the Tax Court is a discretionary order. This Court may therefore interfere only if the judge incorrectly decided a question of law or made a palpable and overriding error of fact (Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215,  1 F.C.R. 331 at paras. 64-66, 69, 72; Paletta v. Canada, 2017 FCA 33, 2017 DTC 5039 at para. 4). In my view the Tax Court judge made neither category of error that would warrant interfering with her decision.
 First, she made no error of law. The Tax Court of Canada, like other courts, has jurisdiction to address an abuse of process in the conduct of proceedings before it (Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63,  3 S.C.R. 77 at para. 35; Main Rehabilitation Co. v. Canada, 2004 FCA 403,  1 C.T.C. 212 at para. 7). Abuse of process is a flexible doctrine, based on the idea that a court has an inherent discretion to terminate litigation at the preliminary stage in order to prevent abusive proceedings that bring the administration of justice into disrepute (Timm v. Canada, 2014 FCA 8,  F.C.J. No. 61 at para. 30). Both the taking of positions like those Mr. Lynch adopted here and conduct that frustrates the discovery process have been characterized as abusive in this sense (Cassa v. R., 2013 TCC 43, 2013 DTC 1060 at para. 14; Fafard v. Canada, 1999 CanLII 9103,  2 C.T.C. 362 (F.C.A.) at paras. 5-6). Here the Tax Court judge could also have relied on paragraph 116(4)(a) of the Tax Court of Canada Rules (General Procedure), SOR/90-688a, which expressly authorizes dismissal of an appeal where the appellant refuses or fails to answer a proper question on a written examination, and paragraph 126(4)(b), by which a case management judge may dismiss an appeal where the appellant fails to comply with the time requirements set out in a case management timetable. They too demonstrate the potential seriousness of obstructing litigation in the Tax Court.
 Second, while the summary dismissal of an appeal is a drastic remedy, I also see no palpable and overriding error of fact in the exercise of the Tax Court judge’s discretion. She gave Mr. Lynch ample opportunity to comply with her orders. She expressly warned him of the consequences if he failed again to comply. As another Tax Court judge observed in Cassa, above, behaviours such as those in which Mr. Lynch engaged “hinder and limit the availability of Court resources for those self-represented litigants who are making an honest attempt to advance their appeals through the Court system in a timely manner” (at para. 14).
Accordingly the appeal was dismissed. The Crown did not seek costs so none were awarded.