Federal Court Decisions

Date: 20061129

Docket: T-1188-06

Citation: 2006 FC 1442

Ottawa, Ontario, November 29, 2006

PRESENT:     The Honourable Mr. Justice Phelan

BETWEEN:

BRIAN AIRTH

Applicant

and

THE MINISTER OF NATIONAL REVENUE

Respondent

REASONS FOR ORDER AND ORDER

[1]               The Court had before it two motions. The first was by the Respondent seeking to strike the Notice of Application for Judicial Review because it was filed outside the thirty (30) days stipulated in s. 18.1(2) of the Federal Courts Act. The second was by the Applicant for an extension of time for filing the same Notice of Application for Judicial Review. By agreement of the parties, the second motion was adjourned until the Court dealt with the first motion.

[2]               The case stems from and is part of 42 Requests for Information (RFIs) issued against individuals or corporations in some manner related to the Hell’s Angels Motorcycle Club (Hell’s Angels). There are potentially 42 judicial reviews to be determined which have now been consolidated.

[3]               There is no doubt that the judicial review application was filed more than 30 days after the sending of the RFIs.

[4]               Neither this Applicant nor the others, except in limited instances, complied with the RFIs.

[5]               The narrow issue on this motion is whether the subject matter of the judicial review is a “decision or order” to which the 30-day rule applies or a “matter” to which the 30-day time limit does not apply.

[6]               The Respondent says that the nature of the judicial review can be taken from the precise wording of the Notice of Application:

… the Respondent’s decision to serve on the Applicant letters seeking to compel production of information (the “Requirements”), purportedly for purposes related to the administration or enforcement of the Income Tax Act.

[7]               The Applicant urges the Court not to be caught up in semantics, that counsel may not have been as precise in drafting the Notice of Application (which can be easily amended) and to look at the substance of the judicial review, an attack on the Minister’s method of proceeding by way of RFIs.

[8]               In my view, these are early days in this proceeding and no affidavits crystallizing the issues in dispute have been filed. However, when one looks at the grounds for the application, it is replete with matters between the Canada Revenue Agency, the RCMP and the Vancouver Police, the use to be made of the information demanded, the purposes of the Minister, the alleged breaches of the confidentiality provisions of the Income Tax Act, the plans and actions of the federal officials and the breaches of Charter rights flowing from this conduct.

[9]               It is evident that the attack in this judicial review is not just on that singular decision to send an RFI. That decision is one part of a course of conduct, all of which the Applicant challenges.

[10]           In accordance with Krause v. Canada (C.A.), [1999] 2 F.C. 476, [1999] F.C.J. No. 179 (QL), this is the type of proceeding which is a judicial review of “a matter”.

[11]           In reaching this conclusion to dismiss this motion to strike, I am also cognizant of the decision in Pharmacia Inc. v. David Bull Laboratories (Canada) Inc., [1994] F.C.J. No. 2076 (QL) that motions to strike should only granted when the judicial review is bereft of any possibility of success. Particularly telling is this comment:

Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion.

[12]           To the extent that judicial economy is a factor in this decision, I can see no advantage to striking this judicial review only to have the very same conduct come back before this Court when some next step is taken as a result of the RFIs.

[13]           In reaching this conclusion to dismiss the motion, it is acknowledged that these are early stages in this proceeding. Therefore, this decision is without prejudice to the ability of the judge hearing this judicial review to consider the matter afresh, which is the usual and preferred way to attack deficiencies in a notice of application for judicial review.

[14]           The parties all recognize that these 42 judicial reviews may become complex and difficult to manage. Therefore, these consolidated proceedings should be put under case management. This may be an appropriate instance for the case management judge assigned to also hear the judicial review on the merits with a prothonotary assigned to assist the judge and to deal with any matters which could adversely affect the judge’s ability to hear the matter.

[15]           Therefore, this motion to strike is dismissed with costs.

ORDER

            IT IS ORDERED THAT this motion to strike is dismissed with costs.

“Michael L. Phelan”

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-1188-06

STYLE OF CAUSE:                          BRIAN AIRTH

                                                            and

                                                            THE MINISTER OF NATIONAL REVENUE

PLACE OF HEARING:                    Vancouver, British Columbia

DATE OF HEARING:                      November 20, 2006

REASONS FOR JUDGMENT:       Phelan J.

DATED:                                             November 29, 2006

APPEARANCES:

SOLICITORS OF RECORD: