Endorsement

COURT FILE NO.: CV-11-432349
DATE: 20120319
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PATRICK NICHOLLS
Respondent/Plaintiff

AND:

THE MINISTER OF NATIONAL REVENUE and THE ATTORNEY GENERAL OF CANADA and KEVIN DIAS
Moving Parties/Applicants/Defendants

BEFORE: Mr. Justice Lederer

COUNSEL:
Respondent/Plaintiff – in person

Fozia Chaudary, for the Moving Parties/Applicants/Defendants

HEARD: March 19, 2012

ENDORSEMENT

[ 1 ] This is a motion, brought by the defendants, to strike out the Statement of Claim on the basis that it demonstrates no cause of action, contrary to Rule 21.01(1)(b), and is an abuse of process, contrary to Rule 21.01(3)(d).

[ 2 ] The Canada Revenue Agency ("CRA") refused the request of the plaintiff for a re-assessment of his 1995 taxation year. It was statute-barred. The CRA also did not accept the notice filed by the plaintiff for Canada Child Tax Benefits. It sought the benefit going back "almost five years" and was filed too late. The plaintiff sought judicial review of these two refusals. Both applications were dismissed; both were appealed. Both appeals were dismissed. The plaintiff blames the Crown, Kevin Dias, and Ricky Tang (the defendant in another action the plaintiff has commenced) who are counsel with the Department of Justice and represented the Crown in tax matters involving the plaintiff. This action is an attempt by the plaintiff to sue the defendants in respect of the roles they played in the failure of the plaintiff to establish his claims. The plaintiff attributes the loss of his tax matters to Kevin Dias.

[ 3 ] While the substance of the Statement of Claim is difficult to discern, it appears to contain six causes of action: negligence, fraudulent mis-representation, negligent mis-representation, misfeasance in public office, breach of duty of good faith and malicious falsehood. In each case, the plaintiff has failed to plead or demonstrate the elements necessary to sustain these causes of action, as follows:

(a) negligence: there is no duty of care owed to the plaintiff;

(b) fraudulent and negligent misrepresentation: there was no reasonable detrimental reliance on any alleged mis-representation or any facts that demonstrate that the plaintiff would have acted differently and achieved a different outcome had the alleged misrepresentations not been made;

(c) malfeasance in public office: no facts were pleaded that set out how the defendants engaged in any unlawful conduct in the exercise of their public functions;

(d) breach of duty of good faith: there was no contract between the plaintiff and the defendants which is a required element of this tort; and,

(e) malicious falsehood: the plaintiff has failed to plead how the alleged fraudulent statements (if any) made by Kevin Dias reflected adversely on his business or property or how the actions of Kevin Dias were so calculated as to induce persons not to deal with the plaintiff.

[ 4 ] It appears that the real goal of this action is to re-engage the court in issues that have already been determined, being the tax claims made by the plaintiff. As such, it is an abuse of process. The decisions that have been made were made by the court and not the defendants. There is no reason to consider that they were arrived at following anything other than a proper process. As such, it is plain and obvious that this action cannot succeed. It is frivolous and vexatious. Finally, no reasonable cause of action has been shown. The required elements have not been pleaded. It does not appear that there is any merit to this. The Statement of Claim is struck without leave to amend.

[ 5 ] Costs to the defendants of $500.

LEDERER J.

Date: 20120319