Court of Appeal for Ontario

2007 ONCA 701

DATE: 20071015

DOCKET: C46171

LASKIN, MOLDAVER and LaFORME JJ.A.

BETWEEN:

ROGER OBONSAWIN carrying on business as NATIVE LEASING SERVICES

(Plaintiff/Respondent)

and

HER MAJESTY THE QUEEN IN RIGHT OF CANADA, MINISTER OF NATIONAL REVENUE, MINISTER OF INDIAN AFFAIRS, COMMISSIONER OF CUSTOMS AND REVENUE, BILL McCLOSKEY, ROBERT FRAPPIER, MICHAEL COX, WINFOR SMITH, DENIS LEFEBVRE, K.M. BURPEE, KEN FOX, JOHN FENELLY, JEANNE FLEMMING, LUISA GUYAN, RUBY HOWARD, KEN McCUAIGE, AILEEN CONWAY AND PIERRE GRAVELLE

(Defendants/appellants)

Gordon Bourgard and Shelley C. Quinn for the appellant

James Fyshe for the respondent

Heard: September 12, 2007

On appeal from the order of Justice E.P. Belobaba of the Superior Court of Justice dated September 25, 2006.

ENDORSEMENT

[1] The respondent commenced an action against the Ministers of National Revenue and Indian Affairs as well as certain named officials employed by the Canada Revenue Agency (the CRA). He alleges, among other things, that these defendants have construed, administered, and enforced the tax exemption provision in s. 87 of the Indian Act in a manner that has targeted the respondent, his business and employees in an attempt to drive him out of business and neutralize him as an aboriginal advocate.

[2] The appellants brought a motion to strike out the Amended Statement of Claim or portions thereof under r. 21.03(3) on two main grounds: (i) the Superior Court of Justice has no jurisdiction over the matter; and, (ii) the claims do not disclose a reasonable cause of action. Before or during the hearing of the motion, the respondent agreed to delete certain portions of the statement of claim and to amend some others.

[3] The balance of the motion was argued on the grounds advanced. The motion was dismissed, in part. It is in connection with a portion of the motion that was dismissed by the motion judge that the appellants appeal.

[4] The focus of the appeal is very narrow. It is limited to the jurisdiction of the Superior Court of Justice to grant declaratory relief sought in paragraph 1(l) of the respondent’s Amended Statement of Claim, namely:

A declaration that the GST Assessment against the plaintiff that is described, and defined, at sub-paragraph [42(a)], below, is null and void, and of no force or effect;

[5] In support of their position, the appellants rely on: (1) the exclusivity of the jurisdiction of the Tax Court of Canada with respect to appeals from assessments; (2) the remedial restrictions set out in the Federal Courts Act; and (3) the assertion that the respondent’s claim in the Superior Court of Justice amounts to an unwarranted intrusion into the jurisdiction of the Tax Court of Canada.

[6] For purposes of the appeal, we need not decide whether a Superior Court judge could never have jurisdiction to declare a tax assessment null and void, as the respondent has requested at paragraph 1(l) of his claim. The pleadings, as they are currently drafted, do not provide a basis in fact or law for such a declaration. Accordingly, we would allow the appeal and order that paragraph 1(l) of the Amended Statement of Claim be struck out.

[7] In fairness to the motion judge, the argument before us on paragraph 1(l) does not appear to have been the focus of the argument before the motion judge. On the contrary, it appears to have crystallized on appeal. Regardless, as indicated, the overriding issue of jurisdiction is a matter that we need not decide at this time.

[8] Given the basis upon which we have decided this appeal, we view this as an appropriate case in which no costs should be awarded.

“John Laskin J.A.”

“M.J. Moldaver J.A.”

“H.S. LaForme J.A.”