[OFFICIAL ENGLISH TRANSLATION]
2000-3613(GST)G
BETWEEN:
COMMISSION SCOLAIRE DE SOREL-TRACY,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon application by the respondent to amend her Reply to the Notice of Appeal;
And upon hearing what was alleged by the parties;
The Court confirms the order made orally on January 18, 2002, authorizing the respondent to amend her Reply to the Notice of Appeal within three weeks in accordance with the written Reasons for Order to follow.
The whole without costs.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2000-3483(GST)G
BETWEEN:
COMMISSION SCOLAIRE DES AFFLUENTS,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon application by the respondent to amend her Reply to the Notice of Appeal;
And upon hearing what was alleged by the parties;
The Court confirms the order made orally on January 18, 2002, authorizing the respondent to amend her Reply to the Notice of Appeal within three weeks in accordance with the written Reasons for Order to follow.
The whole without costs.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2000-1468(GST)G
BETWEEN:
COMMISSION SCOLAIRE DES HAUTES-RIVIÈRES,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon application by the respondent to amend her Reply to the Notice of Appeal;
And upon hearing what was alleged by the parties;
The Court confirms the order made orally on January 18, 2002, authorizing the respondent to amend her Reply to the Notice of Appeal within three weeks in accordance with the written Reasons for Order to follow.
The whole without costs.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2000-315(GST)G
BETWEEN:
COMMISSION SCOLAIRE DES LAURENTIDES,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon application by the respondent to amend her Reply to the Notice of Appeal;
And upon hearing what was alleged by the parties;
The Court confirms the order made orally on January 18, 2002, authorizing the respondent to amend her Reply to the Notice of Appeal within three weeks in accordance with the written Reasons for Order to follow.
The whole without costs.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2001-1196(GST)G
BETWEEN:
COMMISSION SCOLAIRE DES PATRIOTES,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon application by the respondent to amend her Reply to the Notice of Appeal;
And upon hearing what was alleged by the parties;
The Court confirms the order made orally on January 18, 2002, authorizing the respondent to amend her Reply to the Notice of Appeal within three weeks in accordance with the written Reasons for Order to follow.
The whole without costs.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2001-1152(GST)G
BETWEEN:
COMMISSION SCOLAIRE DU VAL-DES-CERFS,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon application by the respondent to amend her Reply to the Notice of Appeal;
And upon hearing what was alleged by the parties;
The Court confirms the order made orally on January 18, 2002, authorizing the respondent to amend her Reply to the Notice of Appeal within three weeks in accordance with the written Reasons for Order to follow.
The whole without costs.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2000-4551(GST)G
BETWEEN:
ENGLISH MONTREAL SCHOOL BOARD,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon application by the respondent to amend her Reply to the Notice of Appeal;
And upon hearing what was alleged by the parties;
The Court confirms the order made orally on January 18, 2002, authorizing the respondent to amend her Reply to the Notice of Appeal within three weeks in accordance with the written Reasons for Order to follow.
The whole without costs.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2000-3623(GST)G
BETWEEN:
SIR WILFRID LAURIER SCHOOL BOARD,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon application by the respondent to amend her Reply to the Notice of Appeal;
And upon hearing what was alleged by the parties;
The Court confirms the order made orally on January 18, 2002, authorizing the respondent to amend her Reply to the Notice of Appeal within three weeks in accordance with the written Reasons for Order to follow.
The whole without costs.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2001-1184(GST)G
BETWEEN:
COMMISSION SCOLAIRE CHOMEDEY DE LAVAL,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon motion by the applicant to strike out the respondent's Reply to the Notice of Appeal because of the authority of a final judgment and because the Reply discloses no reasonable grounds for opposing the appeal;
And upon hearing what was alleged by the parties;
The Court dismisses the applicant's motion in accordance with the written Reasons for Order to follow.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2000-1471(GST)G
BETWEEN:
COMMISSION SCOLAIRE DE COATICOOK,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon motion by the applicant to strike out the respondent's Reply to the Notice of Appeal because of the authority of a final judgment and because the Reply discloses no reasonable grounds for opposing the appeal;
And upon hearing what was alleged by the parties;
The Court dismisses the applicant's motion in accordance with the written Reasons for Order to follow.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
1999-4516(GST)G
BETWEEN:
COMMISSION SCOLAIRE DES CHÊNES,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon motion by the applicant to strike out the respondent's Reply to the Notice of Appeal because of the authority of a final judgment and because the Reply discloses no reasonable grounds for opposing the appeal;
And upon hearing what was alleged by the parties;
The Court dismisses the applicant's motion in accordance with the written Reasons for Order to follow.
The whole with costs.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2001-1181(GST)G
2001-1182(GST)G
2001-1185(GST)G
BETWEEN:
COMMISSION SCOLAIRE DU GOÉLAND,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon motion by the applicant to strike out the respondent's Reply to the Notice of Appeal because of the authority of a final judgment and because the Reply discloses no reasonable grounds for opposing the appeal;
And upon hearing what was alleged by the parties;
The Court dismisses the applicant's motion in accordance with the written Reasons for Order to follow.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2000-4842(GST)G
BETWEEN:
COMMISSION SCOLAIRE DU LAC SAINT-JEAN,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon motion by the applicant to strike out the respondent's Reply to the Notice of Appeal because of the authority of a final judgment and because the Reply discloses no reasonable grounds for opposing the appeal;
And upon hearing what was alleged by the parties;
The Court dismisses the applicant's motion in accordance with the written Reasons for Order to follow.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2001-1096(GST)G
BETWEEN:
COMMISSION SCOLAIRE PIERRE-NEVEU,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon motion by the applicant to strike out the respondent's Reply to the Notice of Appeal because of the authority of a final judgment and because the Reply discloses no reasonable grounds for opposing the appeal;
And upon hearing what was alleged by the parties;
The Court dismisses the applicant's motion in accordance with the written Reasons for Order to follow.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
1999-5092(GST)G
1999-5093(GST)G
1999-5094(GST)G
BETWEEN:
COMMISSION SCOLAIRE ST-JEAN-SUR-RICHELIEU,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon motion by the applicant to strike out the respondent's Reply to the Notice of Appeal because of the authority of a final judgment and because the Reply discloses no reasonable grounds for opposing the appeal;
And upon hearing what was alleged by the parties;
The Court dismisses the applicant's motion in accordance with the written Reasons for Order to follow.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Docket: 1999-1464(GST)G
BETWEEN:
COMMISSION SCOLAIRE DE VICTORIAVILLE,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon motion by the applicant to strike out the respondent's Reply to the Notice of Appeal because it discloses no reasonable grounds for opposing the appeal;
And upon hearing what was alleged by the parties;
The Court dismisses the applicant's motion in accordance with the written Reasons for Order to follow.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
1999-4451(GST)G
BETWEEN:
COMMISSION SCOLAIRE DE LA RIVIÈRE-DU-NORD,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon motion by the applicant to strike out the respondent's Reply to the Notice of Appeal because it discloses no reasonable grounds for opposing the appeal;
And upon hearing what was alleged by the parties;
The Court dismisses the applicant's motion in accordance with the written Reasons for Order to follow.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
1999-4489(GST)G
BETWEEN:
COMMISSION SCOLAIRE DES HAUTS-BOIS-DE-L'OUTAOUAIS,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon motion by the applicant to strike out the respondent's Reply to the Notice of Appeal because it discloses no reasonable grounds for opposing the appeal;
And upon hearing what was alleged by the parties;
The Court dismisses the applicant's motion in accordance with the written Reasons for Order to follow.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
1999-4490(GST)G
BETWEEN:
COMMISSION SCOLAIRE DE L'OR-ET-DES-BOIS,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon motion by the applicant to strike out the respondent's Reply to the Notice of Appeal because it discloses no reasonable grounds for opposing the appeal;
And upon hearing what was alleged by the parties;
The Court dismisses the applicant's motion in accordance with the written Reasons for Order to follow.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2000-211(GST)G
BETWEEN:
COMMISSION SCOLAIRE AU COEUR-DES-VALLÉES,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon motion by the applicant to strike out the respondent's Reply to the Notice of Appeal because it discloses no reasonable grounds for opposing the appeal;
And upon hearing what was alleged by the parties;
The Court dismisses the applicant's motion in accordance with the written Reasons for Order to follow.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
1999-5095(GST)G
BETWEEN:
COMMISSION SCOLAIRE DE L'AMIANTE,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon motion by the applicant to strike out the respondent's Reply to the Notice of Appeal because it discloses no reasonable grounds for opposing the appeal;
And upon hearing what was alleged by the parties;
The Court dismisses the applicant's motion in accordance with the written Reasons for Order to follow.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2000-916(GST)G
BETWEEN:
COMMISSION SCOLAIRE DES SOMMETS,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon motion by the applicant to strike out the respondent's Reply to the Notice of Appeal because it discloses no reasonable grounds for opposing the appeal;
And upon hearing what was alleged by the parties;
The Court dismisses the applicant's motion in accordance with the written Reasons for Order to follow.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2000-1467(GST)G
BETWEEN:
COMMISSION SCOLAIRE DES HAUTS-CANTONS,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon motion by the applicant to strike out the respondent's Reply to the Notice of Appeal because it discloses no reasonable grounds for opposing the appeal;
And upon hearing what was alleged by the parties;
The Court dismisses the applicant's motion in accordance with the written Reasons for Order to follow.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2000-3482(GST)G
BETWEEN:
COMMISSION SCOLAIRE DES BOIS-FRANCS,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon motion by the applicant to strike out the respondent's Reply to the Notice of Appeal because it discloses no reasonable grounds for opposing the appeal;
And upon hearing what was alleged by the parties;
The Court dismisses the applicant's motion in accordance with the written Reasons for Order to follow.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
1999-4488(GST)G
BETWEEN:
COMMISSION SCOLAIRE ROUYN-NORANDA,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
Counsel for the Applicant: Yves St-Cyr
Pierre Daviault
Counsel for the Respondent: Daniel Bourgeois
ORDER
Upon motion by the applicant to strike out the respondent's Reply to the Notice of Appeal because of the authority of a final judgment and because the Reply discloses no reasonable grounds for opposing the appeal;
And upon hearing what was alleged by the parties;
The Court dismisses the applicant's motion in accordance with the written Reasons for Order to follow.
Signed at Ottawa, Canada, this 1st day of March 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 20020430
BETWEEN:
COMMISSION SCOLAIRE DE VICTORIAVILLE, 1999-1464(GST)G
COMMISSION SCOLAIRE DE LA RIVIÈRE-DU-NORD, 1999-4451(GST)G
COMMISSION SCOLAIRE DE ROUYN-NORANDA, 1999-4488(GST)G
COMMISSION SCOLAIRE DES HAUTS-BOIS-DE-L'OUTAOUAIS, 1999-4489(GST)G
COMMISSION SCOLAIRE DE L'OR-ET-DES-BOIS, 1999-4490(GST)G
COMMISSION SCOLAIRE DES CHÊNES, 1999-4516(GST)G
COMMISSION SCOLAIRE ST-JEAN-SUR-RICHELIEU, 1999-5092(GST)G
COMMISSION SCOLAIRE ST-JEAN-SUR-RICHELIEU, 1999-5093(GST)G
COMMISSION SCOLAIRE ST-JEAN-SUR-RICHELIEU, 1999-5094(GST)G
COMMISSION SCOLAIRE DE L'AMIANTE, 1999-5095(GST)G
COMMISSION SCOLAIRE AU COEUR-DES-VALLÉES, 2000-211(GST)G
COMMISSION SCOLAIRE DES LAURENTIDES, 2000-315(GST)G
COMMISSION SCOLAIRE DES SOMMETS, 2000-916(GST)G
COMMISSION SCOLAIRE DES HAUTES-RIVIÈRES, 2000-1468(GST)G
COMMISSION SCOLAIRE DE COATICOOK, 2000-1471(GST)G
COMMISSION SCOLAIRE DES HAUTS-CANTONS, 2000-1467(GST)G
COMMISSION SCOLAIRE DES BOIS-FRANCS, 2000-3482(GST)G
COMMISSION SCOLAIRE DES AFFLUENTS, 2000-3483(GST)G
COMMISSION SCOLAIRE DE SOREL-TRACY, 2000-3613(GST)G
SIR WILFRID LAURIER SCHOOL BOARD 2000-3623(GST)G
ENGLISH MONTREAL SCHOOL BOARD 2000-4551(GST)G
COMMISSION SCOLAIRE DU LAC SAINT-JEAN, 2000-4842(GST)G
COMMISSION SCOLAIRE PIERRE-NEVEU, 2001-1096(GST)G
COMMISSION SCOLAIRE DU VAL-DES-CERFS, 2001-1152(GST)G
COMMISSION SCOLAIRE DU GOÉLAND, 2001-1181(GST)G
COMMISSION SCOLAIRE DU GOÉLAND, 2001-1182(GST)G
COMMISSION SCOLAIRE DU GOÉLAND, 2001-1185(GST)G
COMMISSION SCOLAIRE CHOMEDEY DE LAVAL, 2001-1184(GST)G
COMMISSION SCOLAIRE DES PATRIOTES, 2001-1196(GST)G
Applicants,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDERS
Archambault, J.T.C.C.
[1] Each of the applicants has moved to strike out the respondent's Reply to its Notice of Appeal because it discloses no reasonable grounds for opposing the appeal within the meaning of paragraph 58(1)(b)[1] of the Tax Court of Canada Rules (General Procedure) (Rules) and because continuing the proceedings in this Court would be an abuse of process within the meaning of paragraph 53(c)[2] of the Rules. The applicants are therefore asking that judgment allowing their appeals be granted.
[2] In the alternative, some of the applicants (12 applicants[3]), that is, those whose appeals to this Court are numbered 2001-1184(GST)G; 2000-1471(GST)G; 1999-4516(GST)G; 2001-1181(GST)G; 2001-1185(GST)G; 2001-1182(GST)G; 2000-4842(GST)G; 1999-4488(GST)G; 2001-1096(GST)G; 1999-5092(GST)G; 1999-5093(GST)G; and 1999-5094(GST)G are also asking that judgment allowing their appeals be granted under paragraph 58(1)(a) of the Rules because of the absolute presumption of the authority of a final judgment.
[3] When the hearing began, counsel for the applicants informed the Court that he was in agreement that an order be made authorizing the respondent to file, within three weeks, an Amended Reply to the Notice of Appeal in respect of certain applicants (eight applicants). Those applicants are the ones whose appeals are numbered as follows: 2000-3613(GST)G; 2000-3483(GST)G; 2000-1468(GST)G; 2000-315(GST)G; 2001-1196(GST)G; 2001-1152(GST)G; 2000-4551(GST)G; and 2000-3623(GST)G. The motion by each of those eight applicants to strike out the Reply to the Notice of Appeal was therefore withdrawn.
Analysis
[4] Given the breadth of these reasons, it is worth indicating the headings under which I will set out my analysis and the numbers of the paragraphs where they are found:
(A) FIN DE NON-RECEVOIR BASED ON THE AUTHORITY OF A FINAL JUDGMENT [5]
(1) In a tax appeal brought in Quebec, must the rules of evidence of Quebecor of the common law be applied?
(a) In tax matters [9]
(b) In provincial matters
(i) In private law and in penal law [10]
(ii) In public law (other than penal law) [12]
(1) To administrative tribunals [22]
(2) To the courts [34]
(c) To the Tax Court of Canada in proceedings taken in Quebec [46]
(i) Under the informal procedure [47]
(ii) Under the general procedure [48]
(2) Can common law principles relating to res judicata be applied to interpret the rule of the authority of a final judgment in Quebec? [54]
(3) Conditions for applying the authority of a final judgment in Quebec
(a) General concepts [74]
(i) Identity of object [75]
(ii) Identity of cause [86]
(b) Application of the conditions for identity in tax matters
(i) In income tax matters [93]
(ii) In GST matters [123]
(iii) To the facts of the applicants' appeals
(1) Procedural background [126]
(2) 2001 decision [130]
(3) Identity of object [135]
(4) Identity of cause [142]
(B) FIN DE NON-RECEVOIR ON THE BASIS THAT THE REPLIES TO THE NOTICES OF APPEAL DISCLOSE NO REASONABLE GROUNDS FOR OPPOSING THE APPEALS [146]
(A) FIN DE NON-RECEVOIR BASED ON THE AUTHORITY OF A FINAL JUDGMENT
[5] I will deal with the fins de non-recevoir raised by counsel for the applicants in the order in which he presented them at the hearing. The first one is based on the authority of a final judgment. The 12 applicants are part of a group of 29 applicants each of whom obtained a favourable judgment from the Federal Court of Appeal (2001 decision). That judgment conditionally confirmed their right to input tax credits (ITCs) under the Excise Tax Act (ETA) in respect of taxes payable on student transportation services provided by independent carriers. I will set out the relevant facts and issues of the 2001 decision and the present appeals in greater detail below. At this stage, we need only point out that counsel for the applicants argued that the parties, object, and cause in the appeal of each of the 12 applicants are the same as those in the 2001 decision and that all of those appeals should be allowed on the basis of the authority of a final judgment.
[6] In support of his position, counsel for the 12 applicants relied mainly on two decisions: Roberge v. Bolduc, [1991] 1 S.C.R. 374; and Leduc v. Her Majesty the Queen, [2001] T.C.J. No. 852 (Q.L.). The first is a Supreme Court of Canada decision the reasons for which were written by L'Heureux-Dubé J., who, in thoroughly reviewing the rule of the authority of a final judgment, discussed the nature of the rule and the conditions for its application. Since the case was from the province of Quebec, she examined the civil law concept of the authority of a final judgment found in article 1241 of the Civil Code of Lower
Canada (C.C.L.C.). That article is similar to article 2848 of the Civil Code of
Québec (C.C.Q.), which has been in force since 1994.
[7] The other decision, Leduc, was rendered very recently, on December 20, 2001, by my colleague Judge Lamarre (hereinafter the judge). Counsel for the applicants attached great importance to that decision because it not only has the merit of applying a fin de non-recevoir based on the authority of a final judgment in a tax case but it also completely supports his position. In an appeal that she had to hear for a subsequent taxation year, the judge found that a decision she had herself rendered had the authority of a final judgment. The appeal concerned the same parties and raised a similar issue. To reach her conclusion that the authority of a final judgment applied, the judge relied on both the civil law and common law rules, specifically the authority of a final judgment in the civil law and res judicata in the common law.[4]
[8] Since counsel for the applicants would like me to reach the same conclusion that was reached in Leduc,[5] determining whether it is justified to apply those two legal rules concurrently is crucial. To decide this question, we must first describe the rules, determine which legal system-the civil law or the common law-applies here and decide whether it is appropriate to use them concurrently. I will later come back to the nature of each of the two legal rules; at this point, we must simply note that they are both rules of evidence.[6] Article 2848 C.C.Q., which sets out the rule of the authority of a final judgment, is in Book Seven (dealing with evidence), Title Two (dealing with proof), Chapter III (dealing with presumptions). As for res judicata, authors Sopinka, Lederman and Bryant state the following in The Law of Evidence in Canada, 2nd ed. (Toronto and Vancouver: Butterworths, 1999), at page 1069, No. 19.51: "Although the principle of res judicata is sometimes referred to as a rule of substantive law, the better view is that it is a rule of evidence".[7]
(1) In a tax appeal brought in Quebec, must the rules of evidence of Quebecor of the common law be applied?
(a) In tax matters
[9] The next step is to determine which rules of evidence apply here: those found in the Civil Code of Québec and the Code of Civil Procedure of Quebec (rules of evidence of Quebec) or those of the common law. In Précis de la preuve, 5th edition (Montréal: Wilson & Lafleur, 1996), Professor Ducharme goes a long way toward answering this question at pages 13, 14 and 16:
[translation]
(b) In federal matters
50. The Civil Code of Québec can govern only matters that are under the jurisdiction of the provincial legislatures. Its provisions cannot apply as such to matters under Parliament's jurisdiction. In such matters, the applicable rules of evidence are set out in the Canada Evidence Act.
51. Section 2 of that Act defines what is covered by the Act:
2. This Part applies to all criminal proceedings and to all civil proceedings and other matters whatever respecting which Parliament has jurisdiction.
. . .
53. However, section 40 of the Canada Evidence Act makes some room for provincial law. It states the following:
40. In all proceedings over which Parliament has legislative authority, the laws of evidence in force in the province in which those proceedings are taken, including the laws of proof of service of any warrant, summons, subpoena or other document, subject to this Act and other Acts of Parliament, apply to those proceedings.
54. The Canada Evidence Act deals only with certain specific questions relating mainly to the tendering of evidence, especially the giving of testimony (sections 3-16), the production of documentary evidence (sections 19-36) and public interest immunity (sections 37-39), which means that, under the above-mentioned section, the rules of Quebec law, which are much broader in scope, will ultimately apply to matters under Parliament's jurisdiction to which they should normally not apply.
. . .
61. Under section 40 of the Canada Evidence Act, it is the law in force in the province in which the proceedings are taken that serves as the suppletive law. However, subsection 53(2) of the Federal Court Act contains an exception to this rule. Under that subsection, the Federal Court can, on a suppletive basis, apply not the system of evidence of the province in which the proceedings were taken but any more liberal system of any other province. That subsection states the following:
(2) Evidence that would not otherwise be admissible shall be admissible, in the discretion of the Court and subject to any rule that may relate to the matter, if it would be admissible in a similar matter in a superior court of a province in accordance with the law in force in any province, notwithstanding that it is not admissible by virtue of section 40 of the Canada Evidence Act.[8]
[Emphasis added.[9]]
(b) In provincial matters
(i) In private law and in penal law
[10] It is clear from section 40 of the Canada Evidence Act (CEA) that inasmuch as the proceedings are taken in Quebec, it is the law of evidence of Quebec that applies (unless a rule already exists in an Act of Parliament). What remains to be determined is which Quebecrules are relevant in an appeal from a tax assessment. In proceedings dealing with purely civil matters, criminal law or provincial penal law, the answer is clear: the rules of evidence of Quebec apply in purely civil matters (and thus in private law), whereas the common law rules of evidence apply in criminal and penal matters. In Précis de la preuve, Professor Ducharme states the following at page 12:
[translation]
(a) In provincial matters
45. The rules of evidence set out in the Civil Code of Québec are general in scope and apply to all civil cases whose outcome depends on a provincial statute. This means that, in principle, their coverage extends to all Quebec legislation and is not limited solely to matters regulated by that code. The fact that the Civil Code of Québec is intended to apply to all Quebec legislation is now expressly asserted in the following terms by the preliminary provision of the new code:
The Civil Code of Québec, in harmony with the Charter of human rights and freedoms and the general principles of law, governs persons, relations between persons, and property.
The Civil Code comprises a body of rules which, in all matters within the letter, spirit or object of its provisions, lays down the jus commune, expressly or by implication. In these matters, the Code is the foundation of all other laws, although other laws may complement the Code or make exceptions to it.
46. By the will of the Quebec legislature itself, the rules of evidence in the Civil Code of Québec are not, as such, intended to apply to provincial penal matters. This results from article 61 of the Code of Penal Procedure, which states the following:
61. The rules of evidence in criminal matters, including the Canada Evidence Act (Revised Statutes of Canada, 1985, chapter C-5), apply to penal matters, adapted as required and subject to the rules provided in this Code or in any other Act in respect of offences thereunder and subject to article 308 of the Code of Civil Procedure . . . .
47. One effect of this provision is to make section 7[10] of the Criminal Code, which makes the common law the suppletive law as far as evidence is concerned, applicable to provincial penal matters. Before the Code of Penal Procedure came into force, the authors and the courts, even without such an explicit provision, took the view that the common law rules of evidence took precedence over the provisions of the Civil Code of Lower Canada. In support of this, it was argued that provincial penal law is merely a residue of the criminal law, all the rules of which, including the rules of evidence, come to us from English law.
[11] In La preuve civile, 2nd ed. (Cowansville: Les Éditions Yvon Blais, 1995), at page 36, Professor Royer espouses Professor Ducharme's opinion, namely, that the rules of evidence in the Civil Code of Québec establish the jus commune, but in some respects he qualifies that opinion:
[translation]
73 - Civil Code of Québec - The Civil Code of Québec contains no rule similar to the one stated in articles 1206 and 2712 of the Civil Code of Lower Canada. One author has argued that this omission means that English law and old French law no longer serve as the suppletive law. That is a valid assertion for the substantive rules and for the rules on the production of evidence found in the Civil Code of Québec. That code "completely and exhaustively regulates the law of evidence in civil matters". Moreover, the rules in the Civil Code of Québec originate in French law and the common law. Thus, French law and the common law may continue to be used to interpret them.
74 - Code of Civil Procedure - The Code of Civil Procedure contains several provisions concerning proof and the giving of testimonial evidence. Most of those rules originate in the common law, and English law must generally be relied on to interpret them. Moreover, the legislature did not adopt a code of civil procedure that completely and exhaustively regulates all rules concerning procedure and the production of evidence. This could justify maintaining certain common law privileges connected to the accusatorial and adversarial nature of trials, even if they are not formally recognized in the articles of the Code of Civil Procedure.
(ii) In public law (other than penal law)
[12] For tax matters, which come under administrative law (and thus public law), the answer is not as obvious, since in Quebec there is the whole problem of the sources of public law, a problem that does not arise in the other Canadian provinces. It must be recalled that the law that applies in purely civil matters comes from French civil law whereas public law, to which principles of common law generally apply, comes from the United Kingdom.[11] In Principes de contentieux administratif, 2nd edition (Cowansville: Les Éditions Yvon Blais inc, 1982), at pages 37-38, Professors Pépin and Ouellette provide a good overview of the sources of public law; they state that the common law is the basis of public law and explain the role it plays in public law in Quebec:
[translation]
. . . the basic principles of administrative law originate in English law, in the common law made by judges. This is one of the consequences of the Conquest, which introduced English public law into Canada. As Louis-Philippe Pigeon, later Justice of the Supreme Court of Canada, wrote:
Not enough is made of the fact that Québec is not purely and simply a civil-law province; it is a civil-law province in private law but not in public law. This is why, for instance, English law is the basis of municipal and school law, and of administrative law generally.
The common law can therefore apply in Canadian and Quebec administrative law, unless, of course, it has been repealed or amended by the competent legislature. However, what remains to be determined is, first, what is specifically covered by the common law in Quebec given the fact that constitutional legislation has excepted the field of "property and civil rights" from English law and, second, exactly how the National Assembly must go about derogating from the common law; in Canadian Broadcasting Corporation v. Quebec Police Commission, a case dealing with contempt of court committed before a Quebec body, the Honourable Beetz J. noted the following on this point:
The source of this law is the common law, the principles of which are not set aside by statutes which do not mention it . . . . When the legislator wishes to amend the common law, he does so by express provision . . . .
Since the common law is, in principle, a source of Quebec administrative law, it is possible to look simultaneously at Quebec law and federal law, which also draws on the same source, although some statutes may, of course, establish rules that are specific to each of the legal systems. Since Quebec law is inspired by English law, there should be no misgivings, when circumstances permit, about using in Quebec case law from the other Canadian provinces, which are also, in principle, subject to the common law, as well as case law from the United Kingdom and even other countries from the same tradition.
[13] As can be seen, the common law is one of the main sources of public law, especially administrative law, in Quebec. However, the Quebec legislature can amend the common law that applies to public law by passing laws that may or may not correspond to the principles established by the common law cases. Contrary to what might be thought at first glance, the Civil Code of Québec and the Code of Civil Procedure of Quebec lay down rules that are applicable not only in private law but also in public law. This is the case, inter alia, of article 300 C.C.Q., which provides that legal persons established in the public interest are primarily governed by the special Acts by which they are constituted and by those which are applicable to them. Then, it is the rules of the Civil Code that apply. Article 1376 C.C.Q. provides that the rules set forth in Book Five on Obligations apply to the State and its bodies, and to all other legal persons established in the public interest, subject to any other rules of law which may apply to them. In the Code of Civil Procedure, article 33 gives the Superior Court a superintending and reforming power over inferior courts within Quebec jurisdiction "and [over] bodies politic, legal persons established in the public interest . . . ."
[14] Thus, the question that arises is whether the Quebec legislature has adopted a system of evidence applicable both in purely civil matters and in public law. In the chapter entitled [translation] "The New Law of Evidence in Civil Matters under the Civil Code of Québec" in the collection called La réforme du Code civil, vol. 3 (Ste-Foy, Quebec: Les Presses de l'Université Laval, 1993), Professor Ducharme seems to answer negatively, writing the following at page 443: [translation] "By devoting a special book to the rules of evidence, the Code is indicating that those rules are intended to apply to all civil bodies [instances à caractère civil], as opposed to penal or administrative bodies [instances à caractère pénal ou administratif]".
[15] There is a potential source of confusion in the original French wording here, depending on whether one views this statement as pertaining to the jurisdictional nature of the courts and tribunals in which the rules of evidence will be used or to the fields of jurisdiction of those courts and tribunals. By fields of jurisdiction, I mean the various areas of law that courts and tribunals must consider, such as private law (purely civil law) and public law (including administrative law, judicial law and criminal law). In my opinion, Professor Ducharme's statement is not directed at the issue of fields of jurisdiction; rather, it concerns the type of body (instance) before which proceedings are taken. What does he mean when he talks about administrative bodies? To answer this question, one must note that two types of bodies are recognized in our legal system: courts of law, which are part of the judicial system, and administrative tribunals, which are part of the administrative system.
[16] To properly understand the significance of this distinction, it is necessary to recall one of Canada's basic constitutional principles, namely, the separation of powers: the legislative branch (Parliament), the executive branch (the administration) and the judicial branch (the courts). Administrative tribunals are not part of the judicial branch. When Professor Ducharme talks about administrative bodies, he is referring to administrative tribunals.
[17] The issue of what constitutes an administrative tribunal was recently considered by the Superior Court of Quebec in Barreau de Montréal v. Québec (Procureur général), [2000] R.J.Q. 125, which was affirmed in large part by the Quebec Court of Appeal, [2001] J.Q. No. 3882. The Superior Court had before it a motion for a declaratory judgment: the applicant was seeking to have 13 sections of the Act respecting administrative justice[12] declared inoperative on the ground that the members of the ATQ did not enjoy the guarantees of independence set out in section 23 of the Charter of human rights and freedoms (R.S.Q., c. C-12). To decide that issue, Rochon J. (now of the Court of Appeal) had to examine the nature of an administrative tribunal (at pages 144-45):
[translation]
. . . Pépin and Ouellette propose a broad definition of the concept:
Thus, according to a broad, modern concept, the term "administrative tribunal" encompasses all public authorities other than the courts that make decisions affecting citizens' rights, regardless of whether the decision is judicial or administrative in nature. This can just as easily include a minister as a "commission", "agency", tribunal or "board".
These tribunals differed from the "courts" in many ways: they had specialized members who were often not legal practitioners, they had a simplified procedure, they were not bound by the rules of evidence, and they were generally vested with powers under the Act respecting public inquiry commissions. Authors Pépin and Ouellette note that administrative tribunals have no inherent jurisdiction and that contempt cannot be committed against them.
. . .
Professor Patrice Garant . . . notes that the courts have attached the "administrative tribunal" label both to bodies whose sole function is to hear cases and to other bodies, "commonly called boards or commissions, that have an economic and technical regulation function". He adds that these two categories have the shared role-the main role in one case and an incidental role in the other-of ruling on citizens' rights in accordance with a process that he describes as quasi-judicial.
[18] Moreover, Mr. Justice René Dussault, who wrote the reasons of the Quebec Court of Appeal, added the following in concluding that the ATQ is an administrative tribunal (at paragraph 104):
[translation]
104 . . . what basically distinguishes administrative tribunals from the judicial branch of government is the inability of the former to activate the enforcement procedures of the general law themselves-the penal action and the civil action, sometimes accompanied by an injunction-with regard to their decisions. In our justice system, which is, in this respect, part of the British tradition, administrative tribunals cannot enforce their own decisions because of their separation from the courts.
[19] After defining "administrative bodies", the concepts of "civil bodies" and "penal bodies" used by Professor Ducharme must be considered. The use of those terms corresponds to that found in the legislation defining the jurisdiction of the "courts of law". Generally speaking, the courts are recognized as having two types of jurisdiction: civil jurisdiction and penal (or criminal) jurisdiction. For example, section 3 of the Federal Court Act, R.S.C. 1985, c. F-7, gives the Federal Court "civil and criminal" jurisdiction. There is no reference therein to administrative or public law jurisdiction. Under sections 18 and 28 of that statute, the Federal Court in fact exercises review powers over administrative tribunals and other federal boards and commissions. This therefore takes us into the field of administrative law.
[20] Section 1 of the Courts of Justice Act, R.S.Q. 1977, c. T-16, lists the Quebec courts "in civil, criminal and mixed matters". Whether one is before the Superior Court of Quebec or the Court of Quebec, proceedings are not brought only in purely civil or criminal matters; there may also be public law proceedings. This is the case, for example, where the Superior Court exercises its superintending and reforming power over administrative tribunals and other public bodies, inter alia, to quash a resolution by a municipal council, or where the Court of Quebec hears an appeal from a tax assessment made by the Deputy Minister of Revenue of Quebec. It must be concluded that "civil matters" in such a context must be understood as meaning everything that is not a criminal matter and that the term encompasses administrative law and the other fields of public law (aside from criminal law).
[21] If we now examine Professor Ducharme's statement reproduced at paragraph [14] of these Reasons, I think it must be concluded therefrom that the rules of evidence of Quebec apply to courts that hear proceedings other than criminal law proceedings and that they do not apply to administrative tribunals (administrative bodies). Let us see to what extent this accurately describes the state of the law in administrative tribunals and courts.
(1) To administrative tribunals
[22] Professor Ducharme seems to challenge his own opinion regarding the application of the rules of evidence of Quebec to administrative tribunals when he discusses, in Précis de la preuve, supra, at page 13, paragraphs 48-49, the coverage of the rules of evidence in the Civil Code of Québec in provincial matters:
[translation]
48. As for the system of evidence that applied before administrative tribunals, prior to the coming into force of the Civil Code of Québec, legal literature and the courts took the position that it was an autonomous system separate from the system that applied in civil matters. According to this theory, civil law rules of evidence could apply to an administrative tribunal only as a result of an express provision of the statute creating the tribunal or regulations adopted thereunder. However, it was recognized that some of those rules, insofar as they were an expression of the rules of natural justice, were applicable even if there was no legislative provision to that effect. As well, in certain cases, an administrative tribunal would sometimes rely on civil law rules of evidence to determine the merits of an application even if, under its enabling legislation, it had complete freedom to accept any means of proof that it thought could best serve the ends of justice.
49. Has this autonomous system of evidence in administrative matters continued to exist since the coming into force of the new code? It seems to us that such autonomy is jeopardized as a result of the preliminary provision of the Civil Code of Québec, which seeks to make that code the foundation of all other laws.
[23] In Droit administratif, 4th edition, volume 2, "Le Contentieux" [Litigation] (Cowansville: Les Éditions Yvon Blais, 1996), at page 278, Professor Garant goes further when he states that the rules of evidence in the Civil Code of Québec apply to administrative tribunals:
[translation]
Since the Civil Code is the jus commune of Quebec, Book Seven of the Code, entitled "Evidence", applies to all administrative and quasi-judicial tribunals unless an exception is provided for in special statutes. That book therefore sets out a general system of evidence that may, in some respects, be restrictive.
[24] Professor Ouellette does not share that view. In Les tribunaux administratifs au Canada, Procédure et preuve (Montréal: Les Éditions Thémis, 1997), he defends the principle of the autonomy of the system of procedure very vigorously. According to him, the reason that administrative tribunals were created was to free them from the formal rules of evidence: it would therefore be inappropriate to subject them to the general rules of evidence. Administrative tribunals must be free to adopt their own rules of evidence. He writes the following at page 256:
[translation]
The appearance at the beginning of the century of administrative tribunals-created to be different and more efficient than the courts, made up of specialists, and responsible, following a hearing, for helping to administer a few contemporary legislative standards-created a new challenge in the law of evidence. Obviously, the slavish transposition of technical rules from the jury trial system was inappropriate. The courts slowly developed a theory of quasi-judicial evidence marked by flexibility and pragmatism and inspired by the rules of natural justice.
[25] In "Aspects de la procédure et de la preuve devant les tribunaux administratifs" (1986), 16 R.D.U.S. 819, the same author explains the basis of the principle of the autonomy of administrative evidence in Canada as follows (at pages 846-47):
[translation]
Problems of procedure and evidence are, in practice, so closely related, that the law of administrative evidence, which is judge-made, is based on the same judicial philosophy, marked by pragmatism and flexibility, as the law of administrative procedure. . . .
. . . In matters of evidence, as in procedural matters, the appellate courts have been concerned about recognizing the distinctiveness of administrative tribunals and have been careful not to impose their own rules of evidence on them, preferring to confine themselves to a few basic principles while specifying, where necessary, how those principles operate.
[26] His explanation (at pages 827-28) of the autonomy of administrative procedure as recognized by the Quebec courts is as follows:
[translation]
In actual fact, the principle of the autonomy of administrative procedure results from the basic distinction, the summa divisio, drawn in the case law between the courts, which embody the judicial branch of government, and administrative tribunals and bodies; the conclusions drawn by the highest courts lead to political choices by the legislature to create administrative bodies alongside the traditional courts and to give them judicial powers. In such a case, it must be concluded that, unless otherwise specified, the legislature wanted to exclude the judicial model and allow the body to act according to the methods or procedures that are specific to it and that it considers appropriate to fulfil its mandate. In practical terms, this means that procedure may vary from one body to another. Moreover, the assumption that in the absence of legislative direction, the body should let itself be guided by the procedure of the courts by analogy is rejected. This was the message that the House of Lords delivered in 1915 in the well-known case of Local Government Board v. Arlidge.
The principle was accepted a number of times by judges of the Supreme Court of Canada and by the Quebec Court of Appeal: where legislation is silent, the administrative tribunal determines its own procedure, and the method of the courts is not necessarily a model to be followed.
[27] However, there are decisions in which the courts have concluded that administrative tribunals must apply some of the rules of evidence set out in the Civil Code of Québec. In Thibodeau v. Commission municipale du Québec, [1996] R.J.Q. 1217, at page 1233, Corriveau J. of the Superior Court held that an administrative tribunal had to comply with article 2858 C.C.Q., which deals with the admissibility of evidence that would tend to bring the administration of justice into disrepute. That case involved a recording of a conversation with a municipal councillor that the applicant had made without the councillor's knowledge.
[28] In Bisaillon v. Keable, [1983] 2 S.C.R. 60, Beetz J., writing for the Supreme Court of Canada, assumed that article 308 C.C.P. could apply to a provincial "inquiry commission". That article deals with the power of a court to oblige witnesses to divulge what has been revealed to them in the exercise of their functions. In that specific case, the Supreme Court held that article 308 did not apply to the disclosure by a peace officer of the identity of a police informer and that it was therefore the common law rule of evidence that had to be applied. The Court went even further by stating that the Quebec legislature could not have changed the common law rule because it was a rule of criminal law and such a change would be ultra vires.
[29] In Lapointe v. Commission de police du Québec, [1974] C.A. 121, the Quebec Court of Appeal considered the question of whether the authority of a final judgment applied in an inquiry conducted by the Quebec Police Commission into the actions of certain police officers. The relevant facts before the Commission had been considered by the Court of the Sessions of the Peace, which had acquitted the police officers of all the charges laid against them. The Court of Appeal concluded that, since the judgment of the Court of the Sessions of the Peace was a judgment by a court sitting in criminal matters, it did not have the authority of a final judgment in the inquiry before the Commission, which was a civil body.[13]
[30] Professors Pépin and Ouellette, op. cit., at page 19, seem to take the same position with regard to applying the rule of the authority of a final judgment to administrative tribunals:
[translation]
We know, therefore, that the legal rules applicable to administrative tribunals differ in many respects from those applicable to the courts and thus call for a style of advocacy that is also different, which many litigants do not yet seem to accept. Nevertheless, orders or decisions of administrative tribunals that dispose of a case, like court judgments, have the force of law and are presumed to be valid.
[31] In 1996, the same year that Ducharme and Garant republished their book, the Quebec legislature passed Bill 130, the Act respecting administrative justice, supra, which affirms the specific character of administrative justice in Quebec. Section 1 of that Act states the following:
1. The purpose of this Act is to affirm the specific character of administrative justice, to ensure its quality, promptness and accessibility and to safeguard the fundamental rights of citizens.
This Act establishes the general rules of procedure applicable to individual decisions made in respect of a citizen. Such rules of procedure differ according to whether a decision is made in the exercise of an administrative or adjudicative function, and are, if necessary, supplemented by special rules established by law or under its authority.
This Act also institutes the Administrative Tribunal of Québec and the Conseil de la justice administrative.
[32] To better understand the scope of this new statute, sections 9 and 11 thereof are worth reproducing as well:
9. The procedures leading to a decision to be made by the Administrative Tribunal of Québec or by another body of the administrative branch charged with settling disputes between a citizen and an administrative authority or a decentralized authority must, so as to ensure a fair process, be conducted in keeping with the duty to act impartially.
11. The body has, within the scope of the law, full authority over the conduct of the hearing. It shall, in conducting the proceedings, be flexible and ensure that the substantive law is rendered effective and is carried out.
It shall rule on the admissibility of evidence and means of proof and may, for that purpose, follow the ordinary rules of evidence applicable in civil matters. It shall, however, even of its own initiative, reject any evidence which was obtained under such circumstances that fundamental rights and freedoms are breached and the use of which could bring the administration of justice into disrepute. The use of evidence obtained in violation of the right to professional secrecy is deemed to bring the administration of justice into disrepute.
[33] As can be noted, the autonomy of the system of evidence is now codified in this statute, and it allows for more flexibility in the production of evidence. That autonomy can, of course, be explained in part by the fact that some members of the ATQ are not legal practitioners. It should also be noted that this autonomous system of evidence before administrative tribunals does not provide for the application of the common law rules of evidence, as do the Criminal Code of Canada and the Code of Penal Procedure of Quebec. On the contrary, the Act respecting administrative justice refers to the "ordinary rules of evidence applicable in civil matters". This means that the suppletive law regarding evidence before administrative tribunals should be drawn from the Civil Code of Québec and the Code of Civil Procedure of Quebec, which are the jus commune of Quebec. Finally, it must be noted that the autonomous system applies only to administrative tribunals dealing with administrative matters (that is, "disputes between a citizen and an administrative authority or a decentralized authority") and not to the courts.
(2) To the courts
[34] If the autonomous system of evidence applies only to administrative tribunals dealing with administrative matters, what is the situation in court proceedings that raise issues of public law? Little has been said about this. In the legal literature that was referred to, as shown by the passages quoted above, each time the system of evidence in administrative law is discussed, only proceedings taken before administrative tribunals are at issue.[14]
[35] Yet those tribunals are not the only bodies that hear cases raising issues of administrative law. As previously stated, the Court of Quebec hears appeals from tax assessments made by the Deputy Minister of Revenue of Quebec. Before Parliament gave the Tax Court of Canada exclusive jurisdiction to hear appeals from tax assessments made by the Minister of National Revenue (Minister), Canadian taxpayers could take proceedings in the Federal Court-Trial Division, another court of law. Finally, the Superior Court of Quebec also makes administrative law when it exercises its superintending power over administrative tribunals. It is therefore rather strange that no interest is shown in the system of evidence applied by courts that have to rule in administrative matters in the same way as administrative tribunals.
[36] Generally, it seems to be assumed that the general rules of evidence in civil matters set out in the Civil Code are those that apply. As for the application of the Code of Civil Procedure, Garant, op. cit., volume 2, at page 9, explicitly recognizes that it has replaced the common law in public law:
[translation]
In Quebec, we believe that legal literature and the courts have downplayed the importance of the Code, which, as a codified law, should have replaced the common law and established itself as the fundamental law in matters of judicial law, both private and public.
[37] I must point out that rules of evidence in private law were applied in public law well before the enactment of the new Civil Code of Québec. There are a number of cases in which the courts have applied the rules of evidence set out in the Civil Code of Lower Canada. In particular, in Corporation du Village de Deschênes v. Loveys, [1936] S.C.R. 351, at page 360, the Supreme Court of Canada applied article 1241 C.C.L.C. (which dealt with the authority of a final judgment) in an appeal raising the issue of the nullity of a resolution adopted by a municipal council. Moreover, it must be noted that the Supreme Court did not apply the common law's res judicata but rather the Civil Code's authority of a final judgment in this field, namely municipal law, which is part of Quebec public law. Similarly, in Buchanan v. La Commission des accidents du travail, [1981] C.A. 325, the Quebec Court of Appeal also applied the principle of the authority of a final judgment in a case in which it was argued that a regulation of the Workmen's Compensation Commission was invalid. In provincial tax law,[15] there is the decision of the Court of Quebec[16] in Larouche v. Québec (Sous-ministre du Revenu), 1989 CarswellQue 506, in which Judge Tremblay stated:
[translation]
16 To conclude this interpretative examination of section 82 [of the Act respecting the Ministère du Revenu, Revised Statutes of Quebec, 1977, c. M-31], I therefore do not think that that section is an exception to the rule against hearsay evidence. I cannot convince myself in any way that all of the rules of evidence provided for in the Code of Civil Procedure and the Civil Code must be cast aside as a result of that section.
[38] Following this analysis of the sources of public law in Quebec and the scope of the rules of evidence of Quebec, one conclusion must be reached: the rules of evidence of Quebec are the jus commune in Quebec, both in matters of private law and in matters of public law (except criminal law and provincial penal law). They must therefore be applied in matters of public law-whether municipal law, as in Loveys, or tax law-just as in matters of private law. Occasionally, especially in interpreting a rule of evidence derived from the common law, it will be worthwhile and sometimes necessary to rely on common law principles, such as the hearsay rule. In some exceptional circumstances, the common law rule may prevail, especially if it is a rule of public order within the field of criminal law, as was the case in Bisaillon, supra, regarding the rule against the disclosure of the identity of police informers. The rules of evidence of Quebec must be applied by the courts with the usual rigour. When administrative proceedings are taken before an administrative tribunal governed by the Act respecting administrative justice, the tribunal has a large degree of discretion in applying the rules of evidence of Quebec: it "has . . . full authority over the conduct of the hearing" and "may . . . follow the ordinary rules of evidence applicable in civil matters".
[39] My conclusion that the rules of evidence of Quebec apply not only in purely civil matters but also in administrative matters in public law is confirmed all the more by the fact that it corresponds to the approach taken by the common law. Professor Royer states the following in his book referred to above:
[translation]
31 - Uniqueness of the law of evidence - Unlike France and the other countries on the Continent, England has neither codified its rules nor distinguished the law of evidence in penal, administrative, commercial and civil matters. The system of evidence is unique, although there are exceptions specific to certain fields of law and the application of the rules is sometimes different depending on whether the trial is civil or criminal.
[40] According to the common law, every person, including Her Majesty and her representatives, is subject to the ordinary law of the land as stated by the ordinary courts of the land. Professors Pépin and Ouellette, op. cit., explain the sources of administrative law as follows at page 40:
[translation]
When briefly discussing the sources of administrative law, it is not necessary to draw a distinction between the rules specific to government and the rules that also apply to the legal dealings individuals may have among themselves. It must be understood that, in some circumstances, the government is subject to the rules of "ordinary law" or "private law" i.e. the law applicable to individuals. This situation arises especially in the field of administrative litigation: we will see, for example, that the contractual, delictual and quasi-delictual liability of the government and its agents is basically governed by the rules of ordinary law; we will also see that government decisions are judicially reviewed basically in accordance with the rules established to enable the superior courts to keep the inferior courts, which have jurisdiction in areas defined by legislation, within the limits of that jurisdiction. In short, administrative law has a dualistic nature; it is made up of both ordinary law and special law, that is, law outside the scope of the jus commune; in both cases, those rules have the force of law in relation to the government and are sanctioned by the courts. Sometimes, the ordinary law-here the common law-even acknowledges that the government has special privileges, such as the prerogatives of the Crown.
[41] The authors later go on to say (at pages 40-41):
[translation]
In Canada, as in the United Kingdom, it is a tradition to say, on the contrary, that the government is, as a rule, subject to ordinary law and the ordinary courts. Recently, the Honourable Beetz J. stated the following for the Supreme Court in a case concerning the legal status of a casual employee of the Government of Quebec:
On the other hand, it is important not to lose sight of the principles and spirit of Anglo-Canadian public law. It is a matter of substantive law. It must be remembered that in Anglo-Canadian law, administrative law does not constitute a complete and independent system, separate from the ordinary law and administered by specialized courts. On the contrary, it is the ordinary law, administered by the courts of law, which is made a part of public law and the provisions of which cover the public administrative authority, unless they are replaced by incompatible legislative provisions, or supplanted by rules peculiar to the royal prerogative, that group of powers and privileges belonging only to the Crown. It follows that faced with the necessity of qualifying and regulating a given legal relationship in public law, the jurist of the Anglo-Canadian tradition must necessarily carry out this function with the concepts and rules of the ordinary law, unless statute or prerogative require otherwise.
[42] In Droit administratif ("Common law en poche" collection, Les éditions Yvon Blais, 1997), Professor Pierre Foucher makes similar comments at page 1:
[translation]
A. Scope and characteristics of administrative law in the common law
Strictly speaking, there is no administrative law in the common law, which is in keeping with its unitary tradition. Like constitutional law, administrative law in the common law is an academic construct, a grouping of the specific rules of ordinary law that apply to government. However, those rules are not established by specialized courts on the basis of some administrative code. They are developed by the ordinary courts as rules incorporated into the ordinary law. According to one of the common law's most basic constitutional premises, every person, including Her Majesty and her representatives, is subject to the ordinary law of the land as stated from time to time by the ordinary courts of the land. There is no dichotomy in principle between public law and private law. No Council of State, no specialized body with exclusive jurisdiction to monitor the government develops an autonomous branch of the law applicable solely to government representatives. This conceptual unity of the law and refusal to contemplate separate legal rules for the government is now giving way to a completely different reality: there are many special and exceptional rules that the courts have had to develop to take account of the demands of modern government.
[43] When one looks at a common law treatise on the rules of evidence-such as The Law of Evidence in Canada, supra-it is therefore not surprising to see that the common law does not establish a separate system of evidence for the courts in matters of administrative law. Rather, there is a set of rules that apply equally to civil and criminal matters, often with more specific rules for each of those two fields of law.
[44] Finally, since the CEA applies not only to all civil and criminal proceedings but also to all other fields in which Parliament has jurisdiction, I consider it quite right to conclude that the rules of evidence of Quebec also apply in matters of federal public law, for example, under the Income Tax Act (Act) and the ETA. If it had wanted to limit the rules of evidence of Quebec to the field of private law, Parliament would certainly have specified this, especially when one recalls that its jurisdiction in private law is more limited than the jurisdiction of the provinces. When it has wanted to create an exception to the general rule set out in section 40 of the CEA, it has done so: in section 8 of the Criminal Code, for instance, to ensure that the common law rules of evidence apply in criminal law, and in subsection 18.15(4) TCCA, which provides that this Court is not bound by any legal or technical rules of evidence in hearing an appeal governed by the informal procedure.[17]
[45] Since the system of evidence applied to the courts in the common law provinces is the same irrespective of whether public law or private law is involved-subject to legislative provisions stating otherwise-it must be recognized that, generally speaking, the rules of evidence in civil matters (as opposed to those in criminal matters) are what apply to those courts when they are dealing with public law issues.
(c) To the Tax Court of Canada in proceedings taken in Quebec
[46] As we saw above, section 40 CEA refers us to the laws of evidence of the province in which the proceedings over which there is federal authority are taken, subject to the provisions of that Act and any other relevant Act of Parliament. The TCCA does not provide for any exception that would allow the judges of this Court to apply the laws of evidence of another province, as is the case for the Federal Court (subsection 53(2) of the Federal Court Act).
(i) Under the informal procedure
[47] For taxpayers who elect to have the informal procedure apply to their appeals, there is an exception in subsection 18.15(4) TCCA, which provides that the Court is not bound by any legal or technical rules of evidence.[18] By enacting that provision, Parliament was, as it were, adopting the autonomy of evidence principle for appeals governed by the informal procedure, as that principle is applied by administrative tribunals. On the other hand, taxpayers who make such an election cannot recover more than $12,000 (18.1 TCCA).[19] In such circumstances, it is not surprising that the TCCA also states that a decision made under the informal procedure shall not be treated as a precedent for any other case (18.28 TCCA).
(ii) Under the general procedure
[48] When a taxpayer appeals from an assessment made under the Act or the ETA, the general procedure rules apply. (The informal procedure is an exceptional procedure: it applies only where a taxpayer elects to have it apply.) There is no provision in the TCCA stating what system of evidence must be applied in such an appeal. Section 40 CEA must therefore be given effect. When an appeal to this Court is filed in Quebec, the rules of evidence of Quebec are those that must be applied, with the usual rigour of the Quebec courts.
[49] However, priority must be given to the rules of evidence found in the CEA, the Rules and, where applicable, the other rules adopted under the TCCA.[20] In such cases, common law principles should be the suppletive law.[21] If account is taken of the CEA's rules on the production of evidence and of subsection 4(2) of the Rules, which states that, where matters are not provided for in the Rules, the practice shall be determined by the Court on a motion, the provisions of the Code of Civil Procedure will not generally be applicable or will rarely be applicable in this Court.
[50] The autonomy of evidence principle usually followed by administrative tribunals is not applicable in appeals governed by the general procedure for two reasons. The first is based on the general principle of the coherence of the TCCA. If Parliament made a point of enacting a provision stating that the Court is not bound by any legal or technical rules of evidence for appeals governed by the informal procedure and said nothing about appeals governed by the general procedure, the reason is that it assumed that the ordinary rules of evidence that apply in the courts of law would be applied in this Court.
[51] This brings me to the second reason: the autonomy of evidence principle applies only to administrative tribunals, not to the courts. Contrary to what some[22] believe, this Court is a court of law and not an administrative tribunal. To begin with, this Court, like the Supreme Court of Canada and the Federal Court of Canada, was established by the Parliament of Canada pursuant to the power conferred on it by section 101 of the Constitution Act, 1867 to provide for the "Establishment of any additional Courts for the better Administration of the Laws of Canada".[23] Its judges are appointed by the Governor in Council by commission under the Great Seal (subsection 4(2) TCCA). Only a person who is a barrister or advocate of at least ten years standing at the bar of any province may be appointed a judge, as is the case for superior court judges in Canada (subsection 4(3) TCCA). A judge of the Court holds office during good behaviour but is removable by the Governor General on address of the Senate and House of Commons (subsection 7(1) TCCA). The financial security of judges necessary for judicial independence is ensured by the Judges Act. The Court is a court of record.[24] In the exercise of its jurisdiction, the Court has all such powers, rights and privileges as are vested in a superior court of record.[25] Under section 172.1(2) of the Rules, the Court may, on certain conditions, issue a writ of seizure and sale or a notice of garnishment. The Court may also make an order directing the examination of a judgment debtor. Generally speaking, its rules of procedure are similar to those of the Federal Court-Trial Division and of the superior courts of the provinces. Decisions rendered by the Court under the general procedure may be appealed to the Federal Court of Appeal. Only a judgment on an appeal governed by the informal procedure is final and conclusive and not open to question or judicial review in any court except the Federal Court of Appeal (section 18.24 TCCA). It is clear from all of these attributes that the Tax Court of Canada is part of the judicial branch of the Canadian government.
[52] The fact that this Court has a limited jurisdiction that allows it to specialize in the field of taxation is not inconsistent with its status as a court of law. Parliament had the choice of creating an administrative tribunal or a court to hear tax proceedings. To enable Canadian taxpayers to challenge tax assessments made against them by the Minister before a body that is totally at arm's length from the executive branch, Parliament chose, in its great wisdom, to create a court that is part of the judicial branch.
[53] The Commission scolaire des Chênes (School Board) is in Quebec, and the assessment against it was made by the Deputy Minister of Revenue of Quebec on behalf of the Minister (of National Revenue). The School Board filed its notice of appeal in the Registry of the Court in Montréal, as it had done in the appeal that led to the 2001 decision. Its appeal is governed by the general procedure pursuant to an order of the Chief Judge dated February 15, 2002, and this motion was heard in Montréal. In the circumstances, there can be no doubt that the proceedings were taken in Quebec.[26] I have no reason to think that the situation is different for the rest of the 12 applicants. The rules of evidence of Quebec therefore apply in this case. Specifically, the rule of the authority of a final judgment set out in article 2848 C.C.Q. must apply.[27]
(2) Can common law principles relating to res judicata be applied to interpret the rule of the authority of a final judgment in Quebec?
[54] In Leduc, supra, the judge addressed the position taken by counsel for the respondent, namely, that the doctrine of issue estoppel does not apply in the province of Quebec. She described counsel's position as follows:
Fin de non-recevoirpleaded on the question of the ability of the appellant's spouse to perform a basic activity of daily living
[13] Counsel for the respondent contends that the doctrine of issue estoppel does not apply in the province of Quebec. He refers to the decision by the Supreme Court of Canada in National Bank v. Soucisse et al., [1981] 2 S.C.R. 339, in which Beetz J. distinguishes the doctrine of estoppel in common law from that of fin de non-recevoir which exists in Quebec civil law. On this point, Beetz J. referred to Mignault J.'s opinion in Grace and Company v. Perras (1921), 62 S.C.R. 166, where Mignault J. noted at page 172:
... the doctrine of estoppel as it exists in England and the common law provinces of the Dominion is no part of the law of the Province of Quebec. This, however, does not mean that in many cases where a person is held to be estopped in England, he would not be held liable in the Province of Quebec.
[14] Counsel for the respondent cites certain decisions in which, according to him, Canadian courts have refused to apply the doctrine of issue estoppel in the province of Quebec (Lafarge Canada Inc. v. Canada, [2001] F.C.J. No. 372 (F.C.T.D.); Dufresne Engineering Company Limited c. Le Sous-ministre du revenu du Québec, [1984] R.D.F. 164 (C.A.Q.); Alameda Holdings Inc. v. Canada, [1999] T.C.J. No. 839 (T.C.C.)).
[15] Counsel thus concludes that the concept of estoppel as applied at common law is unknown in Quebec civil law.
[55] The judge described Mr. Leduc's position as follows:
[20] The appellant simply contends that the doctrine of issue estoppel applies to every federal statute and more particularly to the Act. According to the appellant, there can be no doubt that this doctrine is now part of Canadian law (see Angle, supra), and the fact that the Supreme Court of Canada has endorsed that rule's presence in Canadian law is sufficient to conclude that every federal statute is subject to the application of the doctrine of issue estoppel. He argues that this doctrine is a rule of natural justice and there is nothing in Quebec law preventing its application.
[56] To decide this issue, the judge acknowledged that estoppel by representation does not exist in Quebec law and rightly stated that there is a distinction between estoppel by representation and issue estoppel: they are two very different kinds of estoppel (see her analysis at paragraphs 23-28). However, since the conditions of applying the authority of a final judgment and issue estoppel are, according to her, similar and even "interchangeable",[28] this justifies using the issue estoppel principles set out in common law cases to apply the fin de non-recevoir based on the authority of a final judgment in proceedings taken in this Court in Quebec.
[57] With respect for those who hold the opposite view, I think that this interpretation is wrong. I believe instead that the rule of issue estoppel, like that of estoppel by representation, does not apply in Quebec. Indeed, there is some similarity between the authority of a final judgment and issue estoppel (the latter being one of the two forms of the concept of res judicata), as shown by the definition of each of those rules. The authority of a final judgment is defined in article 2848 C.C.Q.:
ART. 2848 The authority of a final judgment (res judicata) is an absolute presumption; it applies only to the object of the judgment when the demand is based on the same cause and is between the same parties acting in the same qualities and the thing applied for is the same.
However, a judgment deciding a class action has the authority of
a final judgment in respect of the parties and the members of the
group who have not excluded themselves therefrom.
[58] First of all, it should be noted that the rule of the authority of a final judgment originates in the Napoleonic Code: see Roberge, supra, at page 401. It is also important to point out that, in Roberge, L'Heureux-Dubé J. relied solely on Quebec and French doctrine and cases to define the nature, basis and conditions for applying the authority of a final judgment: she never referred to the common law concept of res judicata.
[59] In Pesant v. Langevin et al. (1926), 41 Que. K.B. 412, at page 419, Rivard J.A. quoted the following passage from Mignault J. to describe the effect and basis of the rule of the authority of a final judgment:
[translation]
In Laferrière,[29] Mignault J. stated the following:
The doctrine of the authority of a final judgment is based on a presumption juris et de jure and even of public order that a fact found by a judge is true: res judicata pro veritate habetur. Its basis is not the party's consent, which arises from the circumstance that he did not appeal the judgment rendered against him, but the unchallengeable truth of the fact acknowledged by the judgment, which, when it becomes final, may no longer be questioned. And this presumption of truth has been allowed in order to prevent new trials between the same parties on the same question and to make it impossible for the parties to obtain contradictory judgments.
[60] As for res judicata, the following definition is found in Lange, op. cit., at page 9:
. . . In C.U.P.E. Local 1394 v. Extendicare Health Services Inc., Doherty J.A. stated the principle:
Res judicata is a rule of evidence. Assuming the requirements of the doctrine are met, the party against whom the issue was decided in the earlier litigation cannot proffer evidence to challenge that result. Looked at from the vantage point of the successful litigant in the earlier proceedings, the doctrine operates to admit into evidence at the second proceeding the judicial determination of the relevant issue at the earlier proceedings. Not only is that earlier determination rendered admissible, it is also declared to be conclusive with respect to that issue: Spencer-Bower and Turner, The Doctrine of Res Judicata, 2nd ed (1969) at 9; Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992) at 989-90.
[61] In Angle v. M.N.R., [1975] 2 S.C.R. 248, at pages 253-54, 1974 CarswellNat 375F, Dickson J. provided the following overview of this common law concept and its two species:
In earlier times res judicata in its operation as estoppel was referred to as estoppel by record, that is to say, estoppel by the written record of a court of record, but now the generic term more frequently found is estoppel per rem judicatam. This form of estoppel, as Diplock L.J. said in Thoday v. Thoday [[1964] P. 181], at p. 198, has two species. The first, "cause of action estoppel", precludes a person from bringing an action against another when that same cause of action has been determined in earlier proceedings by a court of competent jurisdiction. We are not here concerned with cause of action estoppel as the Minister's present claim that Mrs. Angle is indebted to Transworld in the sum of $34,612.33 is obviously not the cause of action which came before the Exchequer Court in the s. 8(1)(c) proceedings. The second species of estoppelper rem judicatam is known as "issue estoppel", a phrase coined by Higgins J. of the High Court of Australia in Hoystead v. Federal Commissioner of Taxation [(1921), 29 C.L.R. 537], at p. 561:
I fully recognize the distinction between the doctrine of res judicata where another action is brought for the same cause of action as has been the subject of previous adjudication, and the doctrine of estoppel where, the cause of action being different, some point or issue of fact has already been decided (I may call it "issue-estoppel").
Lord Guest in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [[1967] 1 A.C. 853], at p. 935, defined the requirements of issue estoppel as:
. . . (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies . . . .
[62] The fact that the authority of a final judgment and res judicata seem to have the same basis may explain their similarity. For reasons of public order, court decisions must be final: the same question cannot be litigated over and over. It would be unfair for a party to be continually obliged to defend himself or herself in court on the same question.
[63] However, when one has a closer look, one cannot help but notice major differences between these two rules of evidence. First of all, it is important to note that the rule of the authority of a final judgment is a codified rule, initially in article 1241 C.C.L.C. and, since 1994, in article 2848 C.C.Q. It is not a doctrine developed by the courts. There is also a major difference in the effect of the two rules. According to the Civil Code, the authority of a final judgment is an absolute presumption; a fact that has such authority is considered to be established conclusively.[30] In the common law, there seems to be two lines of thought: one is that, if there is res judicata, judges have no choice but to apply it, while the other is that judges have the discretion to apply it or not.[31]
[64] Moreover, and this is the most important reason, there seem to be significant differences in the conditions of application of the two rules. For example, for the authority of a final judgment to exist, it is essential that there be three identities in the two proceedings: identity of object, identity of cause and identity of parties. On the other hand, res judicata in the common law can be subdivided into two separate rules: issue estoppel and cause of action estoppel. As we saw above, issue estoppel applies where the causes of action are distinct.[32] D. Lange, op. cit., states the following at page 29: "The Supreme Court of Canada has clearly established the principle that issue estoppel applies to separate and distinct causes of action." For there to be issue estoppel and thus res judicata, only two identities are necessary: identity of issue and identity of parties. There is another important distinction: as I understand the common law rule, "issue" is not a synonym of "object". In the civil law, an object is a right - I will come back to this later - whereas in the common law, an issue is apparently not limited to a right. It applies[33] to any conclusion of fact, any conclusion of law and any mixed conclusion of law and fact.[34] Thus, it is not necessarily the same thing as an object. The concept of issue is much broader. Issue estoppel and the authority of a final judgment therefore represent two rules that do not apply under the same conditions. They are not "interchangeable" rules.
[65] This brief analysis shows that there are important differences not only in the conditions required for the application of the authority of a final judgment and of res judicata but also in the effects of the two rules. In my opinion, those differences are such that the two rules are incompatible. In the common law, judges have the discretion to apply or not to apply res judicata, whereas in the civil law, the authority of a final judgment creates an absolute presumption, and judges are obliged to give effect to it. In my view, only a legislative provision can release judges from their obligation to give effect to that presumption. An example of such a provision is subsection 18.15(4) TCCA, as we saw above.
[66] I believe that these differences in the application of res judicata and the authority of a final judgment convince us of the soundness of Mignault J.'s comments quoted in Soucisse, supra, which were taken from the article "The Authority of Decided Cases" (1925), 3 Can. Bar Rev. 1, at pages 22-23:
. . . Remember however that the civil law is a distinct and entirely self sufficing system, that its legal literature is extremely rich and abundant, that monumental works of reference like Fuzier-Herman, the repertories of Dalloz and Sirey and the Pandectes Françaises are on the shelves of our libraries, and that, even where the common law and the civil law have a similar rule, as in many cases of mandate, suretyship and torts, to mention these only as typical of many others, it can only lead to confusion to go outside of our system to seek authorities in other systems of law where the rule in question may well be a deduction from another rule which does not exist in our code. I feel very strongly on this subject and I have lost no opportunity in my humble way since I have had the honour of a seat on the bench of our highest appellate court, to insist that each system of law be administered according to its own rules and in conformity with its own precedents.
[67] These comments by Mignault J. are consistent with those he made in Curley v. Latreille(1920), 60 S.C.R. 131, at page 177:
[translation]
It is sometimes dangerous to go outside of a legal system to seek precedents in another system on the ground that the two systems have similar rules, except, of course, where one system has borrowed from the other a rule that was formerly unknown to it. Even if the rule is similar in both systems, it may not have been understood or interpreted the same way in each of them . . . .
[68] It is therefore not surprising that in Grace & Co., supra Mignault J. decided, at page 172,[35] that the common law's estoppel by representation is not applicable in Quebec.[36] To the passage previously quoted, I will add the following:
. . . May I merely add, with all due deference, that the use of such a word as "estoppel," coming as it does from another system of law, should be avoided in Quebec cases as possibly involving the recognition of a doctrine which, as it exists today, is not a part of the law administered in the Province of Quebec.
[69] That decision was followed by Judge Dussault of this Court in Alameda Holdings Inc., supra. Faced with arguments concerning the applicability of the doctrine of estoppel by representation in Quebec, he stated the following:
70 Counsel for the appellant pleaded the doctrine of estoppel and that of fins de non-recevoir. According to counsel, the characteristics and conditions of application of these two institutions are similar, and so should be their effects. This is an over-simplification in my view. I believe that the doctrine of estoppel cannot be pleaded in the instant case and that it is the Civil Code of Quebec that applies. In Soucisse, supra, Beetz J. of the Supreme Court of Canada distinguishes between the two concepts, while recognizing that there has often been confusion between the two and that both terms are used. He refers in particular to Mignault J.'s opinion in Grace and Company, supra, that the concept of estoppel, as applied in the English system, is unknown to the civil law.
[70] In Lafarge Canada Inc., supra, Nadon J. relied not only on those comments by Judge Dussault in Alameda but also on the decision of the Quebec Court of Appeal in Dufresne Engineering Co. Ltd. v. Sous-ministre du Revenu du Québec, [1984] R.D.F.Q. 164, to conclude that the rule of estoppel by representation was not applicable in that case. The passage from Dubé J.A.'s decision in Dufresne that concerns the applicability of the doctrine of estoppel in the province of Quebec is as follows (at page 168):[37]
[translation]
I think, therefore, that there is no reason whatsoever for the appellants in this case to invoke estoppel; moreover, I do not think this theory of estoppel could be applied in the province of Quebec against a clearly defined law; it is up to the courts, and not government officials, to define the provisions of the law; Mignault J., in Grace and G. [sic]v. Perras (1921) 62 S.C.R. 166, 172, ruled clearly on this issue and I think his opinion is still valid:
I have no doubt whatever that Mr. Justice Greenshields will fully agree with me when I venture to observe that the doctrine of estoppel as it exists in England and the common law provinces of the Dominion is no part of the law of the Province of Quebec.
Obviously, in this instance I am looking at the theory of estoppel as simply a rule of evidence precluding a person who has admitted an established fact from denying it subsequently; such a theory may of course have some effect as to the decision to be rendered on the facts, but I cannot consider it authority to alter the law.
[71] I admit that those decisions dealt with estoppel by representation, a type of estoppel that is different from issue estoppel and cause of action estoppel. However, if it was determined that the doctrine of estoppel by representation is not part of the law of Quebec because it is a common law rule of evidence, then the same conclusion must be drawn regarding the other two types of estoppel, which are also common law rules of evidence. This conclusion is all the more necessary where there is already a similar rule[38] in the law (the Civil Code) and where there is an incompatibility in the concurrent application of the two rules in terms of their conditions of application and their effects. In particular, it would be totally inappropriate to apply the rule of issue estoppel established by the courts (which applies where the same cause of action does not exist) even though article 2848 C.C.Q. requires identity of cause and object. As Dubé J.A. put it so well in Dufresne, supra, a case law rule cannot be considered authority to change the law.
[72] Moreover, it is worth noting that in Quebec doctrine, the position taken with respect to estoppel by representation is also taken with respect to estoppel per rem judicatam: it does not apply in Quebec. In particular, in "L'estoppel dans le contexte du droit civil québécois" (1986), 46 R. du B. 599, Claude Nadeau states the following at pages 603-04:
[translation]
Since rules to this effect have been specifically stated in the Civil Code and in the Code of Civil Procedure, it seems obvious that the common law rule concerning estoppel by record does not apply beyond what our codifiers have provided therein. Moreover, our courts have been more restrictive about the part of the judgment covered by the authority of a final judgment.
[73] In light of all these teachings, one conclusion alone is in order: the res judicata rule does not apply in proceedings taken in Quebec, just like the interpretations of that rule of evidence developed by the common law courts do not apply. The rule that must instead be applied is the authority of a final judgment under article 2848 C.C.Q., as interpreted on the basis of the principles of Quebec and French civil law.
(3) Conditions for applying the authority of a final judgment in Quebec
(a) General concepts
[74] What must now be determined is how the rule of the authority of a final judgment should apply in proceedings taken in this Court in Quebec. One must review the conditions for applying that rule set out in article 2848 C.C.Q. As previously mentioned, L'Heureux-Dubé J. provided a complete overview of those conditions in Roberge. She discussed the extensive doctrine and jurisprudence concerning the conditions pertaining to the judgment and the conditions pertaining to identity. Since the former conditions are not problematic here, I will merely list them briefly: (i) the court must have jurisdiction over the matter, (ii) the judgment must be definitive,[39] and (iii) it must have been rendered in a contentious matter. As for the conditions pertaining to identity, there must be identity of parties, object, and cause. Since only identity of object and identity of cause are problematic here, I will focus solely on those. I will first deal with identity of object.
(i) Identity of object
[75] In her analysis, L'Heureux-Dubé J. quoted Mignault to illustrate the scope of this concept (at pages 413-14):
Mignault, op. cit., at p. 105, offers the following illustration:
[translation] But what is the object of an action at law? Clearly it is the immediate legal benefit[[40]] sought in bringing it, namely the right whose implementation is desired. Thus, A claims house C from B. The object of the claim is that A should be declared owner of the house. If this claim is rejected, A can no longer claim house C from B, but this judgment will not prevent him from claiming house D from the defendant. Similarly, A can claim the usufruct of house C from B, despite the dismissal of his action to claim ownership, because the object of the two actions is not the same.
[76] However, L'Heureux-Dubé J. specified that the remedy sought or the purpose pursued need not be identical: it is sufficient for the object of the second action to be implicitly included in the object of the first. One of the authorities she cited in support of this proposition was Pesant, supra. She wrote the following at pages 414-15:
. . . The leading case on the identity of object is Pesant v. Langevin (1926), 41 Que. K.B. 412, where Rivard J.A. states, at p. 421:
[translation] The object of an action is the benefit to be obtained in bringing it. Material identity, that is identity of the same physical thing, is not necessarily required. This perhaps forces the meaning of "object" somewhat, but an abstract identity of right is taken to be sufficient. "This identity of right exists not only when it is exactly the same right that is claimed over the same thing or over one of its parts, but also when the right which is the subject of the new action or the new exception, though not absolutely identical to that which was the subject of the first judgment, nevertheless forms a necessary part of it, is essentially included in it, as by being a subdivision or a necessary sequel or consequence".[[41]] In other words, if two objects are so related that the two arguments carried on about them raise the same question regarding performance of the same obligation between the same parties, there is res judicata.
[77] L'Heureux-Dubé J. stated in her own words (at page 415):
A logical extension is that if the second action claims something which is similar or is a necessary consequence of the first action, then there is identity of object. Pothier, op. cit., at No. 892, p. 471, offers the following example:
[translation] . . . if I have succumbed in the action for a principal sum, I should not be entitled to claim interest on that sum, as such interest cannot be owed to me if the principal sum is not owed to me.
[78] Pothier's example clearly illustrates the concept of inherent object. It should be noted that, like the immediate object, it is first and foremost a right. Thus, in the example, there is the right to the principal sum (the immediate object) and the collateral right to interest (the inherent object). In both cases, the [translation] "object of a legal action is the benefit a litigant seeks or the right the litigant wishes to have sanctioned, limited or revoked."[42] If one has recourse to a court, it is to have a right recognized, not to have a fact such as the colour of one's eyes or one's physical impairment recognized. It is important to properly understand this concept of object so as not to confuse it with the concept of cause (to be examined later), which is the legal fact that gives rise to that right (for example, the existence of a physical impairment where it is characterized in accordance with some rule of law).
[79] To the passage from Pesant reproduced above and quoted by L'Heureux-Dubé J. in Roberge, it is worth adding the following passage found at pages 421-22 of Pesant:
[translation]
. . . Identity of issue may therefore compensate for the lack of physical identity of object where the close connection that links the two proceedings to each other is such that the judge deciding the issue the first time was able to anticipate the consequence in respect of which it is raised a second time.
[80] Since the object of a decision is the recognition of a right, it is normal that the scope of "the authority of a final judgment" can be determined by consulting the judgment itself. In Précis de la preuve, supra, Ducharme notes the following at page 178, No. 585:
[translation]
. . . whereas, for the purposes of the authority of a final judgment, the comparison must be made between the disposition of the judgment and the conclusions sought in the new action at law. The conclusions sought in an action at law are in fact more limited in scope than the judgment disposing of that action. The object of a judgment extends not only to what has been specially applied for but also to everything necessarily related thereto.
[81] This statement is based on comments like those of Rivard J.A., who said in Pesant that the object of proceedings can be found not only in the disposition of the judgment but also in the reasons for judgment. He stated the following on this point at page 423:
[translation]
It is true that, in principle, the authority of a final judgment must not be given to the reasons for the judgment. However, the reasons must be taken into account where they are essential to the decision of the contested point and where they led to the decision. . . .
[82] To better understand the significance of the principles stated by Rivard J.A. in relation to the concept of object, especially the concept of inherent object, we will look at how he applied them in Pesant[43] (at pages 422-23):
[translation]
Applying these rules to the actions in warranty in the Lion and Raymond cases, it first appears that exactly the same issue- concerning the same right claimed and the interpretation of the same instrument relied on-was submitted to and decided by the court in both cases. There is therefore identity of object.
Aside from the name of the creditor in the main action and the amount of that creditor's claim, the pleadings are similar and the exhibits and evidence are the same; as well, the judgments are the same and the issue, the abstract object of the action, is identical. Even if one views the right as being applied to the physical object, that is, the amount claimed, it must still be concluded that the right that is the subject of the new action was actually included[[44]] in the first action and is a necessary sequel or consequence thereof.
[83] In other words, the material object was the right to the specific amount of money claimed[45] by Langevin from Pesant, and the abstract object was the right to be indemnified pursuant to Pesant's undertaking. Even if the right to the specific repayment amount is considered the immediate object (right), the inherent object (the right to be repaid pursuant to Pesant's undertaking) was included in that immediate object: that right was [translation] "essentially included in it [the right to the specific amount], as by being a subdivision or a necessary sequel or consequence". This means that the inherent object, as described by Rivard J.A., is also a right. In subdividing the "essentially included" right, care must be taken not to go as far as the "cause" of that right, because there would then no longer be a distinction between object and cause.
[84] Finally, Rivard J.A. concluded his analysis by setting out a simple rule for determining the extent to which there is identity of object (at pages 423-24):
[translation]
In short, "the idea that must guide us in determining whether there is identity of object is as follows: in ruling on the object of the action, does the judge risk contradicting a previous decision by affirming a right denied or by denying a right affirmed by that previous decision? If the judge cannot rule without running the risk that there be such a contradiction, identity of object and the authority of a final judgment exist. . . .
The judgment on the action in warranty in the Lion Co. case found that Pesant had to indemnify Langevin . . . in respect of the judgment rendered against [him] on the main action because . . . he [Pesant] had undertaken to pay the debts of Langevin's business . . . and indemnify him in respect of any judgments that might be rendered against [him] and because Pesant had, in relation to Langevin, assumed . . . the obligations . . . that [Pesant's prête-nom] had incurred [on Pesant's behalf]. That was the Superior Court's interpretation, in the Lion Co. case, of the deeds executed by the parties; this interpretation, expressly set out in the reasons, is implicitly and necessarily included in the disposition; it is essential to the decision.
[85] Let us now see how L'Heureux-Dubé J. applied the condition for identity of object to the facts of Roberge[46] and described the "right" at issue (at pages 424-25):
. . . While, as the appellant suggests, the sole issue in that case related to the default of the debtor and the application of the giving in payment clause in the deed of loan, nevertheless, the juridical benefit sought was the ownership of the property.
. . .
. . . The judgment in favour of the Caisse had to presume that these securities were validly given. As discussed earlier, even if this was in error, such error does not prevent the judgment from acquiring the authority of res judicata on the facts of this case, given the object of the proceedings, i.e., the ownership of the immoveable property, and the effect of such judgment on charges against the immoveable property, provided, of course, that all other conditions of art. 1241 C.C.L.C. are respected.
(ii) Identity of cause
[86] We will now look at the concept of identity of cause as analysed by L'Heureux-Dubé J. in Roberge, supra. On this point, she relied on the decision of her colleague Gonthier J. in Rocois Construction Inc. v. Québec Ready Mix Inc., [1990] 2 S.C.R. 440. She wrote the following at pages 416-17:
In our context, my colleague's analysis of "cause" in Rocois, supra, is very pertinent to the present discussion and I propose to refer to it at length. After setting out the different approaches, Gonthier J. proposes the following test, at pp. 454-56:
The definitions of "cause" proposed by the various authors fall along a spectrum ranging from the raw facts to the potentially applicable abstract rule of law. The phrases "principal . . . fact which is the direct . . . basis" for the right, "legal fact which gave rise to the right claimed", "origin of or principle giving rise to the right claimed" or "legal source of the obligation" are attempts to capture in words the elusive idea of "cause", on the bridge linking the body of facts to the legal rule in legal reasoning.
First, it is clear that a body of facts[[47]]cannot in itself constitute a cause of action. It is the legal characterization given to it which makes it, in certain cases, a source of obligations. A fact taken by itself apart from any notion of legal obligations has no meaning in itself and cannot be a cause; it only becomes a legal fact when it is characterized in accordance with some rule of law.[[48]] The same body of facts may well be characterized in a number of ways and give rise to completely separate causes. For example, the same act may be characterized as murder in one case and as civil fault in another. . . .
. . .
It is equally clear that a rule of law removed from the factual situation cannot be a cause of action in itself. The rule of law gives rise to a cause of action when it is applied to a given factual situation; it is by the intellectual exercise of characterization, of the linking of the fact and the law, that the cause is revealed.[[49]] It would certainly be an error to view a cause as a rule of law regardless of its application to the facts considered. Accordingly, the existence of two applicable rules of law as the basis of the plaintiff's rights does not lead directly to the conclusion that two causes exist.
Of course, the existence of two rules of law applicable to a factual situation in practice gives rise to a duality of causes in the vast majority of cases, because separate rules generally require different legal characterizations. However, it is not the fact that there are two applicable rules which is conclusive in itself: it is the duality of legal characterizations which may result therefrom. When the essence of the legal characterization of the facts alleged is identical under either rule, it must follow that there is identity of cause.
[87] Royer, op. cit., provides a good summary of this overview at pages 495-96:
[translation]
. . . The cause of an action consists in the facts alleged in a proceeding that have legal effects. It includes a material and concrete element, namely, the material facts and legal acts[[50]] alleged in the written pleadings, and a formal and abstract element, which is the legal characterization of those facts. Identity of cause suggests identity of those two elements.
[88] L'Heureux-Dubé J. then acknowledged that the characterization of cause will depend upon the choice one makes between a more general approach to cause and a narrower one. To provide examples of such characterization, she quoted two French authors (at page 418):
Cornu and Foyer, op. cit., provide examples of such characterization, at p. 410:
[translation] Concrete[[51]] or special concept of cause.-The cause will be: in an action for nullity of a contract, fraud, violence, mistake, or minority and interdiction; in an action for divorce, serious injury, adultery and so on; in an action to establish natural paternity, notorious concubinage, fraudulent seduction, unambiguous admission and so on. Without more detailed discussion of the facts, it is hard to conceive of a more concrete cause.
Abstract[[52]]or general concept of cause (clausula generalis).-In an action for nullity of a contract the cause becomes a defect in consent or incapacity; in an action for divorce, the fact that marital life is intolerable; in an action to establish natural paternity, the natural paternity itself.
. . .
My colleague Gonthier J. in Rocois, supra, seems to have adopted the narrower approach to "cause", favoured by Cornu and Foyer, a position I agreed with in Rocois.
[89] It must be realized that adopting the narrow approach to cause has the effect of limiting the application of the authority of a final judgment and has [translation] "the advantage of not depriving a litigant of the right to bring a valid action".[53]
[90] Let us now see how the concept of identity of cause was applied to the facts in Roberge (at pages 425-26):
The test for identity of cause, as discussed previously, is set out by Gonthier J. in Rocois, supra, at p. 456 in the following terms:
When the essence of the legal characterization of the facts alleged is identical under either rule, it must follow that there is identity of cause.
Both parties propose that the contract of loan is the "cause" of the action taken by the Caisse. If this is so, the "cause" is not the debt between Paul Leclerc and the Caisse, nor the securities listed in the loan agreement. These are simply "a body of facts", to use the words of Gonthier J. in Rocois, supra, at p. 455. It is the legal characterization of these facts that is crucial, and these facts are only relevant in the legal context of a contract of loan, secured by both a hypothec and a giving in payment clause. The inexecution of the obligation undertaken in the contract of loan will be the "concrete"[[54]] cause of action.
[91] The judge concluded her analysis of the facts as follows (at page 426):
. . . The legal characterization of the facts alleged thus remains a contract of loan. The inexecution of the obligations undertaken in that contract is the "cause" and would constitute but one cause of action. Given that characterization, the inevitable result is that the requirement of identity of cause is satisfied.
[92] It is also interesting to note that Rivard J.A. described cause as follows in Pesant (at pages 420-21):
[TRANSLATION]
Cause is the legal fact that is the legal basis for the benefit, the object of the action, the principle giving rise to the right claimed. . . . There is thus identity of cause, enabling the authority of a final judgment to be raised, where the same legal fact is relied on as the basis for the right.
In the case at bar, the cause of both of the actions in warranty, that is, the actions in the Lion Co. case and in the Raymond case, is the undertaking[[55]] that Pesant allegedly made to pay the business debts of Langevin . . . under which he would be required to indemnify [Langevin] for the payments [he would be obliged] to make to [his] creditors. . . . What gives rise to the right claimed by Langevin . . . in [his action] in warranty is the obligation that the defendant in warranty allegedly incurred toward [him] to pay [his] debts, and that is his cause of [action], which is identical in the Lion Co. case and in this one.
There is therefore identity of cause.
(b) Application of the conditions for identity in tax matters
(i) In income tax matters
[93] Before applying the conditions for the authority of a final judgment to the relevant facts of the applicants' appeals, we will look at how the authority of a final judgment might generally be applied in tax matters. Aside from Leduc,[56] I was not referred to any tax decision by a Canadian court in which that rule was applied with respect to a subsequent taxation year. I would like to begin by dealing with cases arising out of the application of the Act, which was the relevant statute in Leduc. Moreover, by testing the conditions for identity in the context of a tax statute that has been in force much longer than Part IX of the ETA, I think that it will be easier to find the appropriate way of applying them in the context of the ETA.
[94] First, it is important to note that income tax assessments made by the Minister almost always involve a single taxation year.[57] Each year, Canadian taxpayers must file a tax return computing the amount of tax owed to the Minister. That obligation recurs annually for all taxpayers who owe tax to the Minister. The Act is therefore, by nature, recurrent in its application.
[95] Generally speaking, tax is determined on the basis of taxable income as computed in accordance with the Act's provisions. A surtax may be added to that basic tax, and certain tax credits may be deducted from it, such as the credit for physical impairment provided for in sections 118.3 and 118.4 of the Act. On receipt of the tax return, the Minister must issue a notice of assessment stating the amount of tax owed by the taxpayer. If the taxpayer has failed to report income or has deducted an amount to which he or she is not entitled in computing taxable income or tax, the Minister may, in making his assessment, add that omitted income or disallow the deduction that the taxpayer made.
[96] If the taxpayer disagrees with the tax assessed by the Minister, the taxpayer may file a notice of objection within the time provided for by the Act and ask the Minister to reconsider his position. If the Minister refuses to correct the amount of the assessment, the taxpayer can appeal to this Court and ask it to render a judgment ordering the Minister to make a reassessment that will reduce or eliminate the tax claimed on the basis that the taxpayer was not required to include the additional income or was entitled to the disallowed deduction. Moreover, what is subject to being appealed is the Minister's assessment, not the reasons for the assessment. Judge Christie explored this question in Hagedorn v. Canada, [1993] T.C.J. No. 727:
6 When the appellant appealed the reassessment of October 16, 1989, to this Court regarding his 1988 taxation year, what was subject to being appealed has been described by judicial authority in different words but, in my opinion, the substance of the language employed is the same. What is open on an appeal to this Court is the result of an assessment, not the process or reasoning by which it was arrived at. In Vineland Quarries and Crushed Stone Limited v. M.N.R., 70 D.T.C. 6043, Cattanach J. said at page 6045:
"As I understand the basis of an appeal from an assessment by the Minister, it is an appeal against the amount of the assessment.
In Harris v. M.N.R., (1965) 2 Ex.C.R. 653 [64 D.T.C. 5332], my brother Thurlow said at page 662:
'... On a taxpayer's appeal to the Court the matter for determination is basically whether the assessment is too high. This may depend on what deductions are allowable in computing income and what are not but as I see it the determination of these questions is involved only for the purpose of reaching a conclusion on the basic question...'."
In Midwest Oil Production Ltd. v. The Queen, 82 D.T.C. 6092 (F.C.T.D.), Mr. Justice Mahoney said at page 6094-5: "It is to be emphasized that it is the Minister's assessment, not his reasons for it, that is the subject matter of the appeal." On appeal to the Federal Court of Appeal, Mr. Justice Ryan speaking for the Court said: "I agree with the reasons for judgment of the learned trial judge and, accordingly, I would dismiss the appeal with costs." Leave to appeal to the Supreme Court of Canada was refused on November 24, 1983: [1983] 2 S.C.R. x.
[97] Even though the Act's application is recurrent, this does not mean that the Act applies the same way year after year: changes in the Act or in a taxpayer's circumstances may lead to different consequences from one year to the next. We will look at a hypothetical case to illustrate how the application of the rule of the authority of a final judgment is applied in tax matters. A taxpayer operating a business purchases a truck in 1997 to deliver its goods. That purchase is made under a leasing contract.[58] According to the Minister's interpretation of the contract, the taxpayer is not the owner of the truck (the lessor is in fact the owner), and the Minister disallows the capital cost allowance[59] (CCA) that the taxpayer claimed in computing his business income for 1997. The appeal, governed by the general procedure, is heard by this Court, which finds in the taxpayer's favour; it confirms that the leasing contract gives the taxpayer valid title to the truck.[60]
[98] For 1999, the Minister makes an assessment and again disallows CCA for two reasons: the first being that the taxpayer never became the owner of the truck in 1997 under the leasing contract, and the second (an alternative reason) being that the taxpayer no longer owned the truck at the end of 1999 because he had promised to sell it to a third party to which he had given possession. The taxpayer appeals to the Court again (under the general procedure[61]). In my opinion, the taxpayer would be entitled to rely on the authority of a final judgment as a fin de non-recevoir with regard to the first reason given by the Minister, since it meets the conditions for identity. The identity of parties is obvious: the appeal involves the same taxpayer and the same minister, represented by Her Majesty.
[99] Several objects can be identified for 1999. There is an immediate object and an inherent object. The immediate object may involve material identity (the same amount of tax being contested[62]) or abstract identity (the right to reduce the tax payable because of CCA). The object may be inherent (involving an "essentially included" right). To be entitled to a reduction in tax, the taxpayer must be entitled to CCA, and to be entitled to CCA, he must, inter alia, be the owner of the truck at the end of 1999¾the relevant year. To meet that condition, the taxpayer must show how he became the owner. One way[63] involves showing that he acquired title to the truck under the leasing contract in 1997. That ownership right thus acquired becomes one of the inherent objects (the right or benefit one seeks to have recognized) on which a judge must rule. In the appeal for 1999, that inherent object relating to the ownership right (or title) acquired in respect of the truck is the same as the one dealt with in the appeal for 1997.[64] To have been able to conclude that the taxpayer did not have to pay the tax claimed by the Minister for 1997, the judge of this Court had to find that the taxpayer was entitled to CCA in computing his business income. And to have been able to conclude that the taxpayer was entitled to CCA, the judge necessarily had to find that the taxpayer had acquired the truck. As a result, the right (title) arising out of the leasing had been recognized. There is therefore identity of object.
[100] As for identity of cause, it is necessary to identify the "fact to be characterized legally", that is, the "fact giving rise to the right claimed" or the fact that must be "characterized in accordance with some rule of law". For the inherent object at issue for 1999 (the ownership right acquired in respect of the truck, the absence of which was the Minister's first reason for disallowing CCA), the fact giving rise to the right is the acquisition of the truck in 1997 under the leasing contract. The "fact giving rise to the right claimed" for 1997 (that is, the ownership right in the truck) is the same, namely, the 1997 acquisition of the truck under the leasing contract. Therefore, there is identity of cause.
[101] Since the three identities are all present, the final decision for 1997 on this issue has the authority of a final judgment for 1999 even if the judge may have erred in law. The Minister is not entitled to raise the issue again. The matter has been decided. Under article 2848 C.C.Q., the ownership right in the truck acquired under the leasing contract is conclusively deemed to be the taxpayer's, and the Minister cannot adduce any evidence to the contrary. The goal of that article is achieved: the Minister and the taxpayer will not be allowed to debate the issue in court year after year. The right acquired as a result of the judgment is protected.[65] Another judge will not be allowed to reach a conclusion different than the one reached on this issue.[66] If the Minister was not satisfied with the decision for 1997, he had only to exercise his right of appeal.
[102] Although the taxpayer was entitled to CCA for the 1997 taxation year, this does not necessarily mean that he is entitled to CCA for 1999. The conditions set out in the Act and the Regulations must be met once again for 1999. In particular, the issue of the truck's ownership can be raised again for 1999 because it is one of the conditions that apply in calculating CCA for that year. As we saw earlier, though, it cannot be raised as regards the ownership right in which there is an absolute presumption that it was acquired in 1997 under the leasing contract. However, the fact that the decision for 1997 has the authority of a final judgment has no effect on the issue of whether the taxpayer still owned the truck at the end of 1999. As article 2848 C.C.Q. states, the authority of a final judgment "applies only to the object of the judgment".
[103] In our example, the Minister argues that the taxpayer disposed of its ownership of the truck under its promise of sale made before the end of 1999. If it were established that the promise was with delivery and possession of the truck-which, according to article 1710 C.C.Q., is equivalent to sale-the taxpayer could no longer claim CCA on the truck because it was no longer the owner of the truck at the end of the year. In the appeal for 1997, the judge had no jurisdiction to decide the issue of ownership at the end of 1999. There was no appeal before him for 1999.
[104] This explanation can be recast using the more technical terms of article 2848 C.C.Q. and Roberge. The ultimate inherent object (the relevant right that must be recognized) at issue for 1999 would be as follows: establishing that the taxpayer still had an ownership right in the truck at the end of 1999. That object is therefore different from the one for 1997, which involved establishing an ownership right existing at the end of 1997. The facts to be characterized legally (that is, the relevant cause in relation to the object for 1999) are the raw facts (agreement and delivery) to which the tax law rule[67] must be applied: there was a disposition if the truck was sold. According to the civil law rule-that is, article 1710 C.C.Q., applied to the agreement creating rights and obligations-the promise of sale with delivery of the truck is equivalent to sale. If the sale occurred before the end of 1999, there can be no entitlement to CCA; otherwise, entitlement exists so long as the other conditions are met. In the appeal for 1997, the object did not relate to the loss of the ownership right as a result of a disposition. There was no "sale" in 1997; that cause did not exist in 1997. Since the object and the cause of the proceedings for 1999 are not the same as those for 1997, there can be no authority of a final judgment on that issue. This means that no fin de non-recevoir can be accepted in relation to the second reason. The Minister can oblige the taxpayer, if it bears the burden of proof, to prove that he still owned the truck until the end of 1999.
[105] Similarly, the fact that it has been held that a taxpayer is entitled to a tax credit for physical impairment for 1997 does not necessarily mean that the taxpayer is so entitled in 1999. Let us take an example similar to the facts of Leduc[68]but replace Mr. Leduc with a Mr. Lévesque whose wife has cataracts that have made her blind. We will also assume that, in 1997, it has not yet been discovered that an eye operation can replace the clouded crystalline lens with a small lens called an implant. The state of medical science is such that a doctor has even diagnosed a "permanent" physical impairment because there is no known surgical operation to restore vision. Moreover, no medication, glasses or corneal lenses can enable Mrs. Lévesque to see. A final judgment by a judge of this Court in 1998 confirms Mr. Lévesque's entitlement to the tax credit for 1997 because Mrs. Lévesque had, according to the judge, a "severe and prolonged physical impairment the effects of which were such that her ability to perform a basic activity of daily living was markedly restricted, that is, all or substantially all of the time, even with therapy and the use of appropriate devices and medication, she was blind" (required impairment).
[106] If the general approach to the concepts of object and cause were applied without taking account of the different taxation years, it would have to be concluded that the Minister could not deny Mr. Lévesque his tax credit for 1999 even though, as a result of a spectacular scientific development, it has been discovered that an operation to eliminate cataracts through an implant can be performed. Mr. Lévesque would be entitled to say that his spouse is deemed to have the required impairment because of the decision for 1997. In fact, it is obvious that, since she was operated on in 1999, Mrs. Lévesque has regained her vision and no longer has the required impairment.
[107] The most technical reason for concluding that the decision for 1997 does not have the authority of a final judgment is that neither the object nor the cause is the same. For 1997, the abstract object[69] (the right or benefit sought) was obtaining a credit for physical impairment for 1997. To have that right recognized, it was necessary to establish the cause (the fact to be characterized legally in accordance with some rule of law), namely, that Mrs. Lévesque had the "required impairment" in 1997[70] (the legal fact) according to the tests in sections 118.3 and 118.4 of the Act in force in 1997 (the relevant tax law rule). The object and cause for 1997 are similar to but not the same as those for 1999. To obtain recognition of the right to the credit for 1999 (the object), it is necessary to establish, according to the tests in sections 118.3 and 118.4 of the Act in force in 1999 (the relevant tax law rule), the legal fact that the required impairment existed in 1999 (the cause). Since there is no identity of object or cause, the decision for 1997 cannot have the authority of a final judgment for 1999.
[108] It should be added that the judge who made the 1997 decision had no jurisdiction to determine Mr. Lévesque's right to a credit for physical impairment for 1999, since the appeal concerned only the tax payable in 1997 and the situation in 1997 with respect to the required impairment. He never found that Mrs. Lévesque had the required impairment in 1999. The authority of a final judgment "applies only to the object of the judgment". Of course, if the Minister ventured to make a reassessment in 2000 denying the credit for physical impairment for 1997, the authority of a final judgment would apply in favour of Mr. Lévesque, who could have the Reply to the Notice of Appeal struck out under section 58 of the Rules. In such a case, the three identities would all be present.
[109] In my opinion, it is necessary to reject the general approach whereby the abstract object sought is the disability tax credit, without considering the year for which it is claimed, and whereby the cause is the required impairment, without considering either the state of that impairment or the tax law rule that exists for the year for which the credit is claimed. As Gonthier J. stated in Rocois, supra, a fact is not legal unless it has been characterized in accordance with some rule of law, and a rule of law is not a cause unless it has been applied to specific facts. Even if, contrary to what I believe, the object can be defined without relating it to a particular taxation year, I do not think that the relevant rule of law applicable to the raw facts can be determined without taking account of the taxation year.
[110] To characterize those facts, it is first necessary to prove them as they existed during the year for which the tax credit is being claimed and to determine the appropriate rule of law in force for that year. Not just any yearly (commercial) edition of the Act can be used. A taxpayer (or the taxpayer's tax practitioner) must first determine the relevant taxation year and then the legislative provisions in force for that year. Once those provisions have been identified, they cannot be applied to just any raw facts. They must be applied to the facts existing during the relevant year. For example, the provisions of the Act in force in 2002 cannot be applied to the facts making up the description of the state of a person's health in 1997 in order to determine the relevant legal fact (the required impairment) for 1999. I think that this is inescapable.
[111] If the Act allowed a taxpayer to be entitled to the disability credit for a particular year so long as the taxpayer had been entitled to that credit for a previous year, then the "authority of a final judgment" for 1997 would make it possible to establish the right to the credit for subsequent years. In such a case, there would be identity of object and cause. In such circumstances, the taxpayer could have a yearly "annuity" as long as no amendments were made to the Act. The Act is not to this effect. Verifying the state of a person's health and determining whether the person has the "required impairment" must be done each year. Accordingly, the decision recognizing the right to the credit (the object) for 1997 does not have the authority of a final judgment in any way in determining the right to the credit (the object) in the appeal for 1999. The required impairment (the cause) must therefore be proved for 1999. Because Mrs. Lévesque had a cataract operation in 1999, has regained her vision, and no longer has the required impairment, her husband is not entitled to a transfer of her credit for physical impairment for 1999.
[112] Moreover, even where the relevant provision (the tax law rule) for 1999 is exactly the same as the one for 1997 and the state of health in 1999 is exactly the same as in 1997, as was the case in Leduc, this would not enable us to conclude that the authority of a final judgment applies. At the most, we could speak of a mere presumption (as opposed to the absolute presumption of the authority of a final judgment). The decision for 1997 might be a persuasive precedent; in other words, if the same provisions of the Act are applied to the same facts, we should expect to obtain the same result.
[113] I am convinced that the Supreme Court of Canada in Roberge would not have found that the authority of a final judgment existed if, by a strange coincidence, the same immoveable property had been acquired by P.L. Inc. one year after the Superior Court's decision, and the caisse populaire had granted P.L. another hypothecary loan for the same amount and on the same terms and had again registered the hypothec on the property of P.L. Inc. rather than on that of P.L. In a new giving in payment action by the caisse populaire against P.L. Inc., P.L. Inc. could plead the irregularity of the hypothec and oppose the fin de non-recevoir presented by the caisse based on the previous decision having the authority of a final judgment. Even if the caisse alleged that the action involved the same parties, the same material object (being granted ownership of the same immoveable property), a contract of loan with the same terms (same amount, same giving in payment clause) and a hypothec that was registered on the same wrong immoveable property, and assuming that the relevant provisions of the Civil Code in effect were the same, there would not be the same cause, that is, inexecution of the "same" obligation. There would be a different cause, that is, failure to fulfill an obligation resulting from the "second" contract of loan. The legal fact giving rise to a right would be different. It would instead be "inexecution of the obligation undertaken in [another] contract of loan". As a result, the authority of a final judgment could not exist.
[114] Contrary to what occurred in Leduc, even if the facts and the rule of law were virtually identical, this example could not be a persuasive precedent because in Roberge the caisse populaire was successful only because of the negligence of P.L. Inc. and perhaps the trustee's unawareness of the defect in the hypothec. In any event, I am convinced that, in the second giving in payment action, the Supreme Court of Canada would allow P.L. Inc. to raise its defence, find that the first decision did not have the authority of a final judgment and dismiss the action.
[115] Given that it is an absolute presumption, it is important not to extend the scope of the irrebuttable presumption of the authority of a final judgment too far. This is even more true as regards its application in appeals from tax assessments. Adopting the narrow approach not only to cause, as L'Heureux-Dubé J. did in Roberge, but also to object is imperative. To illustrate this point, we shall reconsider Leduc. Let us assume that the judge had considered that, for 1997, Mrs. Leduc did not have the required impairment since she did not require an inordinate amount of time to shop for her grain product replacements and had instead ruled in the respondent's favour.
[116] If the interpretation adopted in Leduc were applied, it would have to be concluded that the authority of a final judgment would exist from then on, and Mr. Leduc could no longer be entitled to a credit in subsequent years,[71] even if he could adduce better evidence about the time his wife spent doing her shopping.[72] I do not think that Mr. Leduc would then argue, as he seems to have done in his appeal for 1999, that not finding that the decision for 1997 had the authority of a final judgment for 1999 would be a breach of a rule of natural justice. On the contrary, he would be happy to be told that the decision concerning his disability tax credit for 1997 did not have the authority of a final judgment and that he could introduce in evidence all the relevant facts for 1999 concerning the inordinate effort it took for his wife to do her shopping.
[117] Those comments on Leduc clearly illustrate the problem that a general approach to the concept of cause could present in applying the authority of a final judgment in tax matters, a problem that is due to the fact that tax is paid every year, as previously discussed. A taxpayer's duty to pay income tax recurs every year, and that tax liability must be computed on the basis of the tax system in force during the relevant taxation year.
[118] If the question is considered from the standpoint of public order, the narrow interpretation of the concepts of object and cause gives taxpayers who have lost an appeal for one taxation year a second chance, by enabling them to ask a court to grant them what they are entitled to for another taxation year without having to defend themselves if they were negligent in the previous appeal. Account must be taken of the reality that a good number of taxpayers represent themselves before the Court[73] in appeals governed by the general procedure[74] and that they do not have all the necessary knowledge and experience to prepare their appeals properly.
[119] I think it is safe to say that the vast majority of taxpayers do not like to pay taxes. If, as a result of an oversight, negligence or even ignorance, taxpayers did not adduce the evidence needed to establish their right to a tax credit or deduction in computing their income or to challenge the inclusion of an amount in their income for a given year, and if taxpayers could no longer raise the same issues in relation to a subsequent taxation year because of the authority of a final judgment, then we would have very disgruntled taxpayers who might be tempted to find some other ways of reducing their taxes. Since the Canadian tax system is based on self-assessment, it is essential that Canadian taxpayers at least be convinced that the tax they are required to pay is in keeping with the Act's provisions and that they are not bound by an incorrect interpretation concerning a previous taxation year.
[120] The interpretation I am adopting could, at first glance, enable the Minister to mount a fresh attack year after year and deny taxpayers the tax credit that this Court or an appellate court has already found them entitled to. That recurring denial by the Minister would oblige them to apply to this Court over and over and to engage in the same debate again. Such conduct by the Minister could be an unacceptable administrative abuse. Why should a taxpayer who has been recognized by the Court as having the required impairment have to come back to the Court when his or her condition or the state of medical science has not changed and when the relevant provisions of the Act have not been amended? That was really the crux of the problem raised in Leduc and the issue was not an easy one to resolve. It is not impossible that there was administrative abuse in Leduc, but it would be inappropriate for me to comment on that specific case.
[121] Nevertheless, it is difficult to understand generally why the Minister does not apply to the Federal Court of Appeal for judicial review of a decision made in a case governed by the informal procedure or appeal a decision made under the general procedure if he disagrees with a legal interpretation adopted in such a decision. For example, why oblige numerous taxpayers to appeal to this Court on the issue of the extent of the concept of feeding oneself (does it include doing one's shopping?) when a single appeal to the Federal Court of Appeal (or a single case of judicial review by that court) could determine the issue? This conduct by the Minister is certainly a source of frustration for many taxpayers: what a pointless waste of time and money, not only for taxpayers, but also for the Minister and the Court!
[122] To counter administrative abuse by the Minister, the Court has tools other than the rule of the authority of a final judgment at its disposal. Before the hearing of his or her appeal, a taxpayer can apply to the Court to strike out the respondent's reply to the notice of appeal because it discloses no reasonable grounds for opposing the appeal.[75] After the evidence is heard, the taxpayer can ask the Court to order the respondent to pay costs, including costs on a solicitor and client basis if the facts are basically the same and the legislative provisions are the same. Since taxpayers have these methods of discouraging such abusive practices at their disposal, it is preferable to adopt a narrow approach to the concepts of object and cause. In my view, the argument based on the principles of natural justice that is made to defend a general approach to the concept of cause is totally unfounded.
(ii) In GST matters
[123] In my opinion, the approach described for applying the authority of a final judgment in income tax matters should also be followed in goods and services tax (GST) matters because the filing of GST returns and the remittance of the net tax payable by a registrant under the ETA are recurrent in nature. Moreover, the rules that apply to an assessment and to the challenging of an assessment are basically the same.
[124] A registrant that makes a taxable supply (output) is required to collect the GST payable by the recipient of the output and to remit that amount to the Minister on the recipient's behalf. Like other recipients, a registrant must pay GST when it acquires a taxable supply (input). However, when the input is acquired by the registrant in the course of its commercial activities, the registrant is entitled to claim an input tax credit (ITC) from the Minister.
[125] A registrant must remit the net tax (the GST collectible on outputs minus the ITCs claimed on inputs) when it files its GST return for a particular period.[76] That period varies depending on the registrant's situation. Some must file an annual return and others a quarterly return, while a good number of registrants must file a monthly return. If the amount of net tax is positive (the GST collectible exceeds the amount of ITCs claimed), the registrant must remit that amount to the Minister. However, if the amount is negative (the ITCs claimed exceed the GST collectible), the Minister must refund it to the registrant. In both cases, the Minister issues a notice of assessment. Here again, if there is a disagreement over the amount of the Minister's assessment, the registrant can exercise a remedy similar to the one provided for in the Act.
(iii) To the facts of the applicants' appeals
(1) Procedural background
[126] By way of its motion, each of the 12 applicants is seeking to have the Court recognize that the 2001 decision has the authority of a final judgment. They are arguing that this decision is final because the respondent has not appealed it and, as a result of the authority of a final judgment, this Court can immediately render a favourable judgment on their appeal because the conditions for identity-that is, identity of parties, object and cause-are met in the case at bar.
[127] Since the 2001 decision was rendered by the Federal Court of Appeal in the School Board's appeal and that decision was filed in the record of each of the other of the 12 applicants, I will limit my remarks to the School Board's motion and simply consider the relevant facts that emerge from reading its record.[77] The 2001 decision was rendered in case 97-3347(GST)G on the appeal (appeal for 1996) of November 12, 1997, with respect to the reporting period from May 1 to May 31, 1996 (May 1996 period). In the case considered here-1999-4516(GST)G-the appeal of October 26, 1999 (appeal for 1998), concerns the reporting period from November 1 to November 30, 1998 (November 1998 period).
[128] For the November 1998 period, the School Board claimed ITCs of $257,532.78.[78] Neither the Notice of Appeal nor the Reply to the Notice of Appeal indicates whether those ITCs relate solely to the GST that became payable during the November 1998 period or whether they relate instead to a period that began earlier. Paragraph 12 of the respondent's Reply to the Notice of Appeal for the appeal for 1996 states that, in its return for the May 1996 reporting period, the School Board claimed ITCs of $505,273[79] [translation] "in respect of the GST it has supposedly paid independent carriers since July 1, 1992[80] [(1992-96 ITC period)] for the supply of a student transportation service acquired from those carriers". Since the ITCs of $257,533 represent about half of the ITCs covered by the 2001 decision, it is highly likely that they also relate to a reporting period (relevant ITC period) prior to the November 1998 period.
[129] When the Minister denied the ITCs of $505,273, the School Board appealed. On February 10, 2000, my colleague Judge Lamarre Proulx rendered her decision dismissing that appeal for 1996 and the appeals of the rest of the 12 applicants. That decision was reversed by the 2001 decision of the Federal Court of Appeal on October 17, 2001. The 2001 decision is indexed as follows: Commission scolaire des Chênes v. The Queen, 2001 FCA 264.[81]
(2) 2001 decision
[130] To determine to what extent the conditions for identity have been met here, we will review briefly the 2001 decision. As we saw earlier, the Minister denied the ITCs claimed by the School Board in respect of the GST that had become payable on its inputs for the 1992-96 ITC period, that is, the student transportation service provided by one or more independent carriers (the carrier). The Minister argued that the School Board had not met all the conditions set out in subsection 169(1) ETA-that it had not acquired the transportation service (its input) for consumption, use or supply in the course of its commercial activities. The relevant legislative provisions are as follows:
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169(1) General rule for [input tax] credits - Subject to this Part, where property or a service is supplied to or imported by a person and, during a reporting period of the person during which the person is a registrant, tax in respect of the supply or importation becomes payable by the person or is paid by the person without having become payable, the input tax credit of the person in respect of the property or service for the period is the amount determined by the formula A x B
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169(1) Règle générale - Sous réserve de la présente partie, le crédit de taxe sur les intrants d'une personne, pour sa période de déclaration au cours de laquelle elle est un inscrit, relativement à un bien ou à un service qu'elle importe ou qui lui est fourni, correspond au résultat du calcul suivant si, au cours de cette période, la taxe relative à l'importation ou à la fourniture devient payable par la personne ou est payée par elle sans qu'elle soit devenue payable : A x B |
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where
A is the total of all tax in respect of the supply or importation that becomes payable by the person during the reporting period or that is paid by the person during the period without having become payable; and
B is
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où :
A représente la taxe relative à l'importation ou à la fourniture qui, au cours de la période de déclaration, devient payable par la personne ou est payée par elle sans qu'elle soit devenue payable;
B représente :
[. . .]
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(c) in any other case, the extent (expressed as a percentage) to which the person acquired or imported the property or service for consumption, use or supply in the course of commercial activities of the person.
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c) dans les autres cas, le pourcentage qui représente la mesure dans laquelle la personne a acquis ou importé le bien ou le service pour consommation, utilisation ou fourniture dans le cadre de ses activités commerciales. |
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123(1) "commercial activity" of a person means
(a) a business carried on by the person (other than a business carried on without a reasonable expectation of profit by an individual, a personal trust or a partnership, all of the members of which are individuals), except to the extent to which the business involves the making of exempt supplies by the person,
. . .
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123(1) « activité commerciale » Constituent des activités commerciales exercées par une personne :
a) l'exploitation d'une entreprise (à l'exception d'une entreprise exploitée sans attente raisonnable de profit par un particulier ou une société de personnes dont l'ensemble des associés sont des particuliers), sauf dans la mesure où l'entreprise comporte la réalisation par la personne de fournitures exonérées;
[. . .]
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123(1) "consideration" includes any amount that is payable for a supply by operation of law;
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123(1) « contrepartie » Est assimilé à une contrepartie tout montant qui, par effet de la loi, est payable pour une fourniture.
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123(1) "exempt supply" means a supply included in Schedule V; |
123(1) « fourniture exonérée » Fourniture figurant à l'annexe V. |
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123(1) "recipient" of a supply of property or a service means (a) where consideration for the supply is payable under an agreement for the supply, the person who is liable under the agreement to pay that consideration, (b) where paragraph (a) does not apply and consideration is payable for the supply, the person who is liable to pay that consideration, and (c) where no consideration is payable for the supply,
(i) in the case of a supply of property by way of sale, the person to whom the property is delivered or made available, (ii) in the case of a supply of property otherwise than by way of sale, the person to whom possession or use of the property is given or made available, and (iii) in the case of a supply of a service, the person to whom the service is rendered,
and any reference to a person to whom a supply is made shall be read as a reference to the recipient of the supply;
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123(1) « acquéreur »
a) Personne qui est tenue, aux termes d'une convention portant sur une fourniture, de payer la contrepartie de la fourniture; b) personne qui est tenue, autrement qu'aux termes d'une convention portant sur une fourniture, de payer la contrepartie de la fourniture; c) si nulle contrepartie n'est payable pour une fourniture : (i) personne à qui un bien, fourni par vente, est livré ou mis à sa disposition,
(ii) personne à qui la possession ou l'utilisation d'un bien, fourni autrement que par vente, est transférée ou à la disposition de qui le bien est mis,
(iii) personne à qui un service est rendu.
Par ailleurs, la mention d'une personne au profit de laquelle une fourniture est effectuée vaut mention de l'acquéreur de la fourniture.
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Schedule V |
Annexe V |
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Part III |
Partie III |
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5. [School busing] - A supply made by a school authority to elementary or secondary school students of a service of transporting the students to or from a school that is operated by a school authority. |
5. Service consistant à assurer le transport d'un élève - La fourniture, effectuée par une administration scolaire au profit d'un élève du primaire ou du secondaire, d'un service consistant à assurer le transport de l'élève entre un point donné et une école administrée par une administration scolaire. |
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[131] Since the Minister argued that the School Board was supplying transportation to students, that output represented an exempt supply, and the transportation activity was therefore not considered a "commercial activity". According to the Minister, this meant that the School Board was not entitled to any ITCs in respect of the GST paid to the carrier.
[132] To finance its transportation service, the School Board obtained a subsidy from the Minister of Transport of Quebec under "budgetary rules" adopted each year. That subsidy was intended to cover the costs incurred by the School Board to transport students. Relying on the definitions of the terms "recipient" and "consideration" in subsection 123(1) ETA, the School Board argued that the Minister of Transport-and not the students-had to be considered the recipient of its transportation service and that that output was therefore not an exempt supply. This meant that it was carrying on commercial activities and was entitled to ITCs.
[133] In reasons written by Mr. Justice Marc Noël, the Federal Court of Appeal ruled in favour of the School Board. To reach the conclusion that the subsidy paid by the Minister of Transport was the consideration for the transportation service, the Court of Appeal first found that the Minister of Transport had an obligation to pay the subsidy, that the only purpose of the subsidy was to provide transportation for the School Board's students and that there was a direct link between the payment of the subsidy and the supply of the service. Accordingly, the Minister of Transport had paid the consideration for the supply otherwise than under an agreement for the supply[82] and was deemed to be the recipient for the purposes of the ETA (even though the students were the ones to be provided with the service).
[134] Before ending this analysis of the 2001 decision, it should be noted that counsel for the respondent seemingly admitted before the Federal Court of Appeal that the School Board was entitled to the ITCs if the subsidy represented consideration paid by the Minister of Transport to the School Board: in such circumstances, the transportation service (output) would not be an exempt supply. (See paragraphs 11 and 12 of the 2001 decision.)
(3) Identity of object
[135] We will now determine whether the conditions for identity are met as regards the appeal for 1998. Without a doubt, the parties-the School Board and the respondent¾are the same as in the appeal for 1996. However, what about identity of object? It must be remembered that the object is the benefit or right being sought. Here, the object is easy to determine. In its appeal for 1996, the School Board sought a rebate for the negative amount of its net tax (the immediate material object) for the May 1996 period. Since the Minister had denied that rebate, the School Board took proceedings in this Court to have its right to the amount recognized. To be entitled to that negative amount, it also had to be entitled to ITCs for the 1992-96 ITC period (the inherent object).
[136] The inherent material object[83] (the amount of the ITCs) in the two appeals is clearly different: one is an amount of $505,273, and the other is an amount of $257,533. Moreover, we note that the 2001 decision did not decide this issue. The disposition of the judgment reveals the following:
The appeal is allowed with costs here and in the Tax Court of Canada, the decision under appeal is set aside and the assessment is referred back to the Minister of National Revenue for reassessment on the basis that the subsidy paid by the Minister of Transportation to the appellant constitutes the consideration for the supply of the student transportation service, subject to the right to audit that was reserved by the respondent pursuant to paragraph 18[84] of the agreed statement of facts filed with the Tax Court of Canada.
[137] As can be seen, by ordering the Minister to recalculate on the basis that the subsidy constituted consideration "subject to the right" of the Minister to ensure that the amount of ITCs did in fact represent the total GST amounts that had become payable on the inputs supplied to the School Board by the carrier during the 1992- 96 ITC period, the 2001 decision found that the School Board had, at the most, a conditional right to the ITCs claimed. All that the decision confirmed was that one of the many conditions that must be met to be entitled to ITCs (those conditions constituting all the legal facts giving rise to the right to ITCs) had been met. In other words, the 2001 decision confirmed the existence of one component of a cause, not the existence of a right. It could not confirm such a right because one or more of the other conditions had not been dealt with, such as the condition that GST amounts become payable on the inputs during the 1992-96 ITC period or the condition that the ITC application be made within the required time.[85]
[138] The inherent abstract object (which does not take account of the amount itself), namely the right to ITCs, would be the same in the two appeals if no account were taken of the ITC period for which they were claimed. For the reasons already set out above, I believe that the object must be defined in relation to the period for which ITCs are claimed. In its 2001 decision, the Federal Court of Appeal could render judgment only as regards the ITC period covered by the appeal for 1996, that is, the 1992-96 ITC period. There would therefore be no identity of object.
[139] The only other inherent object that is relevant for the purposes of this case, and on which the Federal Court of Appeal made a decision, is the School Board's right to the subsidy. It is an object that might be described as inherent and ultimate; it is, as it were, the most inherent object. To determine whether the subsidy constituted "consideration" within the meaning of the tax law rule (the rule consisting of the definition of the term "consideration" for the purposes of the definition of "recipient", both of which are found in subsection 123(1) ETA), the Federal Court of Appeal considered whether the School Board had a right to the subsidy and concluded that it did: "In my view, there is no doubt as to the duty of the Minister of Transport to pay the subsidy" (paragraph 24 of the 2001 decision).
[140] As shown by the Federal Court of Appeal's analysis, the existence of the right was determined in accordance with the administrative law rule (see paragraphs 24 and 25 of the 2001 decision). For that purpose, the Federal Court of Appeal reviewed the relevant legislative provisions: section 4 of the Transport Act, R.S.Q. 1977, c. T-12, and, in particular, section 300 of the Education Act, R.S.Q. 1977, c. I-14,[86] which authorizes the Minister of Transport to establish budgetary rules "[e]ach year". Moreover, the Federal Court of Appeal noted that "[c]ounsel for the respondent, moreover, conceded that there was such an obligation at the hearing" (paragraph 25 of the 2001 decision).
[141] Since the subsidies are payable under budgetary rules established each year, the recognition of a right to the payment of part of the subsidy pursuant to a given budgetary rule could also apply to the payment of the rest of the subsidy under the same budgetary rule. However, since those rules were not filed and many facts are missing, it is impossible to come to a decision on this. Moreover, I will add that, even if such evidence had been adduced and it could be concluded that the authority of a final judgment applied as regards the existence of the School Board's right (that is, if it could be concluded that a subsidy was payable in accordance with the administrative law rule), this would not be sufficient to conclude that the subsidies paid constituted "consideration" in accordance with the tax law rule applicable for the relevant ITC period, which is different for the purposes of the appeal for 1998.
(4) Identity of cause
[142] As can be seen from the 2001 decision, the Federal Court of Appeal limited itself to characterizing the subsidy as consideration given for an output supplied by the School Board to the Minister of Transport. The importance of that characterization can be summarized briefly as follows. The fact that the subsidy was consideration paid by the Minister for the output made the Minister the recipient of that output. This excluded the students as recipients of the output, thus making it impossible for the output to become an exempt supply. The output could therefore be considered a supply that was part of the School Board's commercial activities, entitling it to ITCs.
[143] The School Board's right to ITCs depends here, as it were, on a crucial legal fact: does the subsidy constitute consideration paid by the Minister of Transport? The benefit sought (the object) is the right to ITCs for a particular reporting period, and the right to ITCs must be established in accordance with the relevant tax law rule, namely, the rule applicable to the relevant ITC period-the period during which GST on the input became payable. The relevant legal fact to be characterized (which becomes the legal fact giving rise to a right) for the purposes of that object is the subsidy (raw fact) characterized in accordance with the relevant tax law rule, that is, the definition of the word "consideration" for the purposes of the definition of the word "recipient" (both of which are found in subsection 123(1) ETA). If payment of the subsidy constitutes payment of the "consideration . . . for the supply"[87] at the relevant time, then the Minister of Transport is the recipient, which causes the chain reaction leading to the right to the ITC.
[144] Since the characterization of the raw facts depends on the tax law rule applicable during the relevant period, and since that rule must be applied to the raw facts existing during that relevant period, the cause in the appeal for 1996 would not be the same as the cause in the appeal for 1998 because that appeal does not relate to the same relevant period. I have no evidence suggesting that there is any overlap of relevant ITC periods here.
[145] The conditions for identity-identity of object and of cause-are not met here. Whatever value the authority of a final judgment in respect of the 2001 decision may have for the School Board in its appeal for 1996, it is of no use to the School Board in its appeal for 1998. To establish its right to the ITCs claimed, it will have to show that all the conditions set out in the ETA are met for the relevant ITC period to which its appeal for 1998 applies. It must, inter alia, meet the condition of having carried on commercial activities at the relevant time. This means that the first fin de non-recevoir based on the authority of a final judgment cannot succeed and must be rejected for both the School Board and the rest of the 12 applicants.
(B) FIN DE NON-RECEVOIR ON THE BASIS THAT THE REPLIES TO THE NOTICES OF APPEAL DISCLOSE NO REASONABLE GROUNDS FOR OPPOSING THE APPEALS
[146] The merits of the second fin de non-recevoir relied on by the applicants (aside from those who withdrew their motions during the hearing) must still be determined. Counsel for the applicants argued that the respondent's Replies to the Notices of Appeal disclose no reasonable grounds for opposing their appeals. The reasons he gave in support of his allegations in his motion are as follows:
[translation]
10. As regards the other appeals, the Applicants submit that the Court can apply paragraph 53(c) and especially paragraph 58(1)(b) of the Tax Court of Canada Rules (General Procedure) to strike out the respondent's Replies to the Notices of Appeal because they disclose no reasonable grounds for appeal or for opposing the appeals given the judgments rendered by the Federal Court of Appeal in the same matter and because allowing the proceedings to continue in this Court would needlessly obstruct the judicial process, which would be an abuse of the process of this Honourable Court;
11. The fact that the Minister of Finance of Canada has announced legislative amendments to the disputed provision of Part IX of the Excise Tax Act after final, enforceable judgments were rendered by the Federal Court of Appeal concerning that provision is an obstruction of the judicial process. Allowing the respondent to wait until the proposed amendments are in force before this Honourable Court has to decide on the remedies sought by the Applicants in their appeals now pending before this Court would bring the administration of justice into disrepute;
12. Since those proposed legislative amendments have not yet been passed by the House of Commons and therefore do not have the force of law, this Honourable Court has the power to grant the relief sought through this motion under paragraphs 53(c), 58(1)(a) and 58(1)(b) of the Tax Court of Canada Rules (General Procedure).
[147] A first preliminary comment must be made. A fin de non-recevoir based on paragraph 58(1)(b) of the Rules must be decided by examining the pleadings only, since no evidence is admissible on an application under that paragraph (see subsection 58(2) of the Rules).
[148] Counsel for the respondent cited the decision of the Supreme Court of Canada in Hunt, supra, a case concerning a motion to strike based on Rule 19(24) of the Rules of Court (British Columbia), which is analogous to paragraph 58(1)(b) of the Rules. Since paragraph 58(1)(b) is a procedural rule adopted under the TCCA, I am of the view that it takes precedence over the rules of evidence of Quebec. And since the Code of Civil Procedure of Quebec does not apply here[88] and paragraph 58(1)(b) of the Rules has its origin in the common law, it is entirely appropriate to adopt the Supreme Court of Canada's interpretation in Hunt, which is based on common law case law.
[149] After reviewing English case law, its own judgments and the decisions of the Ontario Court of Appeal and the British Columbia Court of Appeal, the Supreme Court of Canada held that the test for striking out a pleading is whether the outcome of the case is "plain and obvious" or "beyond reasonable doubt". Wilson J., speaking for the Court, described this rule as follows at page 980:
Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C. O. 18, r. 19: assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of a plaintiff's statement of claim be struck out under Rule 19(24)(a).
[150] Among the decisions cited by Wilson J. is the decision of the British Columbia Court of Appeal in Minnes v. Minnes (1962), 39 W.W.R. 112. At page 978, she quoted Tysoe J.A.:
In my respectful view it is only in plain and obvious cases that recourse should be had to the summary process under O. 25, R. 4, and the power given by the Rule should be exercised only where the case is absolutely beyond doubt. So long as the statement of claim, as it stands or as it may be amended, discloses some question fit to be tried by a judge or jury, the mere fact that the case is weak or not likely to succeed is no ground for striking it out. If the action involves investigation of serious questions of law or questions of general importance, or if facts are to be known before rights are definitely decided, the Rule ought not to be applied.
[151] At page 976, she also cited the Ontario Court of Appeal's decision in Ross v. Scottish Union and National Insurance Co. (1920), 47 O.L.R. 308 (C.A.), which concerns a rule similar to the one in paragraph 58(1)(b) of the Rules. In that decision, Magee J.A. stated the following: "The Rule has only been acted upon in plain and obvious cases, and it should only be so when the Court is satisfied that the case is one beyond doubt, and that there is no reasonable cause of action or defence."
[152] Counsel for the respondent also cited the decision of my colleague Judge Lamarre Proulx in Glenmaroon Holdings (1986) Ltd. v. Canada, [1996] T.C.J. No. 1558 (Q.L.); appeal dismissed: [1999] F.C.J. No. 443 (Q.L.) (F.C.A.). In her decision, Judge Lamarre Proulx stated the following:
10 My analysis of the questions at issue in the present motion is that although the decision of the Federal Court of Appeal in Husky Oil (supra) regarding the interpretation of paragraph 245(2)(a) of the Act may appear difficult to distinguish from the facts in the present appeal it remains however that the matter of artificial transactions is complex and that not all arguments may have been submitted to the Courts. Moreover, it seems that the said decision is the first one on this subject. The matter being complex and the decision being recent, I do not think that it would be prudent for a Court to strike out the ground for opposing the appeal as being superfluous and an abuse of the court process.
[153] The following are some of the grounds for opposing the second fin de non-recevoir set out by counsel for the respondent at paragraphs 15-18 of his written representations:
[translation]
15. The applicants argue that the pleadings in the cases on which a judgment has been rendered are identical . . . to the pleadings in their cases. This is, in fact, the main ground put forward by the applicants. However, the respondent submits that the Court cannot presume that the evidence will be the same, and the respondent should not be deprived of the chance of using the discovery process to try to adduce new evidence.
16. Moreover, the respondent will be able to make arguments that were not made to the Court of Appeal. The respondent will be able to argue that the Minister of Transport did not have an obligation to pay the subsidy. In support of that argument, the respondent can cite a recent decision by the Quebec Court of Appeal, Ruel v. Pauline Marois (rendered after Commission scolaire des Chênes), which establishes that a subsidy is a discretionary act.
Paul Ruel et al. v. Pauline Marois et al.
Que. C.A. 500-09-006303-986, October 30, 2001, para. 64
17. The respondent can already tell the Court that she will be able to adduce evidence showing that a number of the applicants were registered charities within the meaning of the Income Tax Act.
18. Those charities are thus "public institutions" within the meaning of section 123 of the Act, and their supply of school transportation is exempt under section 2 of Part VI of Schedule V of the Act. In Commission scolaire des Chênes, the Court had to determine only whether the supply in question was exempt under section 5 of Part III of Schedule V of the Act.
[154] Two of the 12 applicants, the Commission scolaire Chomedey de Laval and the Commission scolaire de Rouyn-Noranda, may have been registered charities during the relevant period at issue. According to counsel for the respondent, such charities are "public institution[s]" within the meaning of section 123 of the ETA, and their supply of school transportation is exempt under section 2 of Part VI of Schedule V of the ETA. If this were the case, those school boards would not be entitled to ITCs, since their inputs (the transportation service provided by the carriers) would not have been acquired for consumption, use or supply in the course of their commercial activities. As we have seen, the activities of a business that involve the making of exempt supplies are not commercial activities.[89]
[155] Counsel for those two applicants explained that the only reason he did not agree to withdraw his motion to strike in regards to them is that their 2001 decision has the authority of a final judgment. Since that argument has been rejected, I am convinced that he would have agreed to withdraw those applicants' motions as well. In any event, it is clear that it is not appropriate to strike out the respondent's Replies to the Notices of Appeal of the two applicants in question given the new defence referred to in the preceding paragraph. An amendment to those Replies could certainly disclose a valid ground for opposing the appeals.
[156] As for the motions of all the other applicants, I agree with counsel for the respondent that the decision rendered by the Quebec Court of Appeal in Marois on October 30, 2001, a few days after the 2001 decision of the Federal Court of Appeal on October 17, 2001, raises serious legal issues that deserve to be considered in the applicants' appeals.
[157] In particular, the respondent could rely on the in-depth analysis in Marois of the basis, nature and conditions of application of the budgetary rules adopted in Quebec by the Government of Quebec. In that analysis, the Quebec Court of Appeal referred to academic texts and court decisions that do not seem to have been considered by the Federal Court of Appeal-in any event, it did not refer to them. The following passage from Marois merits serious examination:
[translation]
64. Those budgetary rules establish a legal tie of a contractual nature between the government and the universities whereby the government gives the money to the universities. The universities accept the conditions set by the Minister before the subsidy is paid. The legal relationship is based above all on that specific legal tie and not on a legislative provision giving the Minister or the government some sort of management power. Authors Andrée Lajoie and Michelle Gamache have defined the nature of this legal relationship particularly well:
The subsidies can therefore be characterized as a discretionary, bilateral administrative act, that is, an administrative contract of gift by which the Minister undertakes to pay an amount that the universities accept expressly or through acts implying such acceptance. Therefore, between parties expressly authorized by law, there is a true agreement of wills in relation to a legal object, namely, the transfer of an amount for a consideration that is in keeping with public order. Since it is a gift, governed here by the civil law unless an exception is created by statute, the consideration lies simply in the intention to make a gift.
. . .
This is not to say that the universities receiving the subsidies have no obligations imposed on them. However, those they have, particularly with respect to limiting tuition fees, managing in accordance with certain standards and being accountable, do not relate to an object to be provided, are not stipulated in the interest of the contracting Minister and are meant to be not reciprocal obligations but preconditions to the formation of the relationship creating the gift.
. . .
The consequence of this characterization of the operating subsidies as contracts of gift is that the Minister becomes the debtor of the allocated amount as soon as the university has accepted it. Thus, during a fiscal year, the Minister can no longer unilaterally change the budgetary rules applicable to that year and deny or reduce the announced payments.
65. The sanction for a breach by the university of the conditions it has accepted for the grant has its source in that same "contractual" tie.
[158] Obviously, I do not have to decide whether such an analysis is correct or whether it would be accepted by this Court or the Federal Court of Appeal. All I must decide is whether the respondent's Replies to the Notices of Appeal disclose no reasonable grounds for opposing the appeals. Such a conclusion is not possible here. To repeat what my colleague Judge Lamarre Proulx said in Glenmaroon Holdings, supra, "I do not think that it would be prudent for a Court" to strike out the respondent's Reply to the Notice of Appeal in each of the applicants' cases, even if the applicants are in a race against time because the Minister of Finance wants Parliament to amend the ETA retroactively.
[159] For all these reasons, each applicant's motion is dismissed. The Court hereby confirms the order made orally giving the respondent three weeks to file Amended Replies to the Notices of Appeal in the cases of the eight applicants. The respondent is entitled to her costs, calculated as if there had been just one motion.
Signed at Ottawa, Canada, this 30th day of April 2002.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 3rd day of July 2003.
Sophie Debbané, Revisor
1 Subsections 58(1) and (2) of the Rules provide as follows:
58.(1) A party may apply to the Court,
(a) for the determination, before hearing, of a question of law raised by a pleading in a proceeding where the determination of the question may dispose of all or part of the proceeding, substantially shorten the hearing or result in a substantial saving of costs, or
(b) to strike out a pleading because it discloses no reasonable grounds for appeal or for opposing the appeal,
and the Court may grant judgment accordingly.
(2) No evidence is admissible on an application,
(a) under paragraph (1)(a), except with leave of the Court or on consent of the parties, or
(b) under paragraph (1)(b).
[2] Section 53 of the Rules provides as follows:
53. The Court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
(a) may prejudice or delay the fair hearing of the action,
(b) is scandalous, frivolous or vexatious, or
(c) is an abuse of the process of the Court.
[3] There were 12 school boards at the time the Notices of Appeal were filed. Some of them were later consolidated, with the result that those 12 applicants are in fact only 8 applicants.
[4] In these Reasons, I will use the expression "authority of a final judgment" to designate the civil law concept found in article 1241 C.C.L.C. and article 2848 C.C.Q. and the Latin expression "res judicata" to refer to the common law concept. The concept of res judicata encompasses the rule of issue estoppel and the rule of cause of action estoppel.
[5] Although that decision was rendered under the informal procedure and cannot be treated as a precedent for any other case (see section 18.28 of the Tax Court of Canada Act, R.S.C. 1985, c. T-2 (TCCA)), this does not mean that inspiration cannot be drawn from persuasive reasoning found therein.
[6] In L'administration de la preuve, 3rd ed. (Montréal: Wilson & Lafleur, 2001), Léo Ducharme defines evidence as follows at page 1:
[translation]
1. - Generally speaking, evidence can be defined as the set of rules that govern how a fact is demonstrated in court. In the civil law concept of the law of evidence, a distinction is drawn between two types of rules of evidence: substantive rules and rules on the production of evidence. The first category includes rules relating to the object and burden of proof and to the nature, probative force and admissibility of the means of proof. In other words, it encompasses rules that influence the judicial recognition of rights more directly. Since a right only fully exists to the extent that its holder can demonstrate it in court when it is challenged, it is natural that these rules are stated in the Civil Code alongside the rules on which the existence of rights are dependent.
2. - In contrast to substantive rules, rules on the production of evidence govern how the various means of proof are used in court proceedings. Since these rules are closely related to the conduct of the proceedings themselves, their place is quite naturally in the Code of Civil Procedure. Our law reflects this civil law notion of the law of evidence, since the substantive rules are found mainly in the Civil Code and the rules on the production of evidence in the Code of Civil Procedure. Article 2811 C.C.Q. provides a good illustration of the relationship between these two groups of rules, stating that "proof of a fact or juridical act may be made by a writing, by testimony, by presumption, by admission or by the production of material things, according to the rules set forth in this Book and in the manner provided in the Code of Civil Procedure".
[Emphasis added.]
Some of the rules in the Code of Civil Procedure (C.C.P.) fall more within substantive law than procedural law. They include the rules dealing with Crown immunity and professional secrecy. (See Ducharme, op. cit., at page 2.)
[7] Donald J. Lange expresses the same opinion in The Doctrine of Res Judicata in Canada (Markham, Ont.: Butterworths, 2000), at page 9.
[8] It should also be noted that, in paragraph 63 of his book, Professor Ducharme points out that the Law Reform Commission of Canada prepared a draft federal evidence code that seems to have generated a great deal of discussion in 1975. A bill was introduced in the Senate on November 18, 1982. Since it was not passed before Parliament was dissolved, the bill lapsed, and no new bill has since been presented.
[9] In these Reasons, the emphasis is always added unless otherwise indicated. Moreover, all annotations in the quoted passages have been omitted unless otherwise indicated.
[10] Section 8 since the 1985 revision of the Statutes of Canada: R.S.C. 1985, c. C-46.
[11] See the preamble to the Constitution Act, 1867, which states that Canada wanted a "Constitution similar in Principle to that of the United Kingdom".
[12] S.Q. 1996, c. 54; R.S.Q., c. J-3. This statute creates the Administrative Tribunal of Québec (ATQ).
[13] However, according to two decisions of the Superior Court of Quebec, it seems that the authority of a final judgement as applied in administrative law is not absolute. See De Repentigny v. CALP, [1997] C.A.L.P. 1843, and Whitehead v. CALP, [1998] C.A.L.P. 465. In the first decision, Lesage J. adopted the same principle followed by Lesyk J. in Whitehead. He wrote the following at page 1846:
[translation]
. . . The authority of a final judgment cannot exist, if only because the object of the claim is different. Moreover, the authority of a final judgment is not an irrebuttable presumption in administrative law.*
*Douglas C. Stanley, "Res Judicata in Administrative Law", (1983) 32 U.N.B.L.J. 221, at page 223.
These statements may be considered obiter in the two decisions, since the authority of a final judgment did not exist: in De Repentigny, because there was no identity of object, and in Whitehead, because a final judgment was not involved. Moreover, Lesage J. relied on a common law decision to apply the rule of the authority of a final judgment found in the Civil Code of Québec. In the common law, as we shall see, res judicata is not a codified rule, and there is no legislative rule creating an absolute presumption like that of article 2848 C.C.Q.
Finally, it might be appropriate to qualify the position that the rule of the authority of a final judgment applies to administrative tribunals. Specifically, if the administrative tribunal in question is not bound by the ordinary rules of evidence, it might be concluded that it is not obliged to receive indirect evidence consisting of the presumption of the authority of a final judgment set out in article 2848 C.C.Q. In other words, if a tribunal is not bound by the rules of evidence under a specific legislative provision, why should it apply the rule of evidence in article 2848 C.C.Q.? On the other hand, a court, which is required to apply the ordinary rules of evidence, might find that a final decision by an administrative tribunal has the authority of a final judgment. For purposes of comparison, see Ainsley v. Canada, [1997] F.C.J. No. 701 (Q.L.), File No. A-610-96, discussed below in note 18.
[14] See Ducharme, Précis de la preuve, supra, page 13, No. 48, and Royer, op. cit., pages 41-42, No. 81.
[15] For a recent decision rendered after the coming into force of the new Civil Code of Québec, see Gurberg (Succession de) v. Québec (Sous-ministre du Revenu), 2001 CarswellQue 1106, 2001 R.J.Q. 1393, 2001 DTC 5606. In federal tax law, see, inter alia, the decision of Judge Dussault of this Court in Alameda Holdings Inc. v. Canada, [1999] T.C.J. No. 839 (Q.L.), 2000 DTC 1544. The relevant passage is reproduced at paragraph [69] of these Reasons. See also the decision of Nadon J., then a judge of the Trial Division of the Federal Court of Canada, who adopted the same interpretation in Lafarge Canada Inc. v. Canada, [2001] F.C.J. No. 372 (Q.L.). Finally, there is also the decision of Babin J. of the Superior Court of Quebec in Canada (Procureure générale) v. Têtu, 2001 CarswellQue 444, 2001 R.J.Q. 469.
[16] It should be noted that appeals dealing with provincial tax matters are heard by the Court of Quebec, which is a court of law, and not by the ATQ.
[17] The Quebec legislature has done so by adopting the common law rules of evidence in penal law by means of article 61 of the Code of Penal Procedure.
[18] That subsection is worded as follows:
18.15(4) Notwithstanding the provisions of the Act out of which an appeal arises, the Court, in hearing an appeal referred to in section 18, is not bound by any legal or technical rules of evidence in conducting a hearing for the purposes of that Act, and all appeals referred to in section 18 shall be dealt with by the Court as informally and expeditiously as the circumstances and considerations of fairness permit.
Since the authority of a final judgment is a rule of evidence, this Court would therefore not be obliged to apply it. In Ainsley, supra, the Federal Court of Appeal heard an appeal from a decision of a deputy judge of this Court who had held that a letter could not be admitted into evidence in the absence of its author as a witness. Obviously, that deputy judge had applied the usual hearsay rule. However, the Federal Court of Appeal concluded as follows at paragraph 6: "In our view, given that the proceedings below were conducted in an informal way, it was not necessary in order for the letter to be admitted into evidence that its author be called." It could therefore be inappropriate to apply the irrebuttable presumption of the authority of a final judgment in appeals heard under the informal procedure.
[19] However, there is no such limit for an appeal under the ETA.
[20] For an illustration of this principle, see The Queen v. Farmer Construction Ltd., 83 DTC 5272 (F.C.A.).
[21] The rules of evidence in the CEA and the Rules generally deal with the production of evidence and are similar to those found in the Code of Civil Procedure of Quebec, which, according to Professor Royer, op. cit., originate from the common law.
[22] See, inter alia, Garant, op. cit., vol. 1, page 176.
[23] On this point, see the decision of Chief Judge Christie in Andrew Paving & Engineering v. M.N.R., 84 DTC 1157. In the consolidation by the Department of Justice, the following list of statutes establishing courts is found as an annotation to section 101 of the Constitution Act, 1867 (the note in question was originally prepared by the late E.A. Driedger, Q.C.): Supreme Court Act, Federal Court Act and Tax Court of Canada Act.
[24] Section 3 TCCA. It will soon be a superior court of record under section 60 of the Courts Administration Service Act (CASA), S.C. 2002, c. 8 (assented to on March 27, 2002).
[25] Section 13 TCCA. Since the Court's judges will be superior court judges, this provision is replaced in the CASA, section 67, with another that gives the Court the power, jurisdiction and authority to deal with and impose punishment for contempt against the Court, whether or not committed in the face of the Court.
[26] This does not mean, however, that all of these conditions must be met for it to be concluded that proceedings are taken in Quebec. That is an issue I do not have to decide here. I merely note that there is no doubt that the School Board's appeal was brought in Quebec.
[27] I have provided a lengthy overview of this question for several reasons. First, it was necessary to determine whether the authority of a final judgment or res judicata had to apply. As well, little attention has been paid to this question either by legal literature or by the courts in tax cases. As we have seen, much has been written about the autonomy of evidence before administrative tribunals, but almost nothing has been written about the system of evidence before courts hearing administrative law cases.
Moreover, a certain ambivalence prevails in this Court about the choice of the general system of evidence in appeals heard in Quebec. In such appeals, lawyers and judges are inclined to use rules of evidence and the interpretation of those rules that have been developed by the common law. For one illustration, see my decision in Mercille v. The Queen, 2000 DTC 1915, paragraphs 13-18. This situation is easy to explain: the tax judgments of this Court and the other federal courts dealing with evidentiary matters are more readily available in tax law reports than the tax judgments of the Quebec courts.
As well, there is a tendency to try to adopt a "national" interpretation so that the Act is applied in the same way throughout Canada. In my opinion, this approach is not appropriate where specific concepts or rules of Quebec civil law must be interpreted. The distinctiveness of the Quebec legal system must be respected, especially when section 40 CEA requires us to do so.
[28] In support of this conclusion, she cited (at paragraph 36 of her decision) Lange, op. cit., who states at page 34 that the rules of issue estoppel and the authority of a final judgment are "interchangeable".
[29] Laferrière v. Gariépy (1920), 62 S.C.R. 557.
[30] In Ruel v. Thomas, [1982] C.A. 357, Mayrand J.A. stated that there may be an exception when two rules of public order (in that case, entitlement to support and the authority of a final judgment) are incompatible. The authority of a final judgment should not be given to a decision contrary to public order that gave effect to a waiver of support in return for a lump sum. It might be argued that these statements by Mayrand J.A. are obiter because he also noted that the cause was not the same in the two proceedings, since one was governed by the Civil Code's provisions dealing with separation from bed and board while the other was governed by the Divorce Act. Moreover, he said that the separation judgment contained an implied restriction, namely that the waiver was valid only insofar as there was no significant change in the situation of the support recipient. In other words, the authority of a final judgment cannot exist where it is of the essence of a judgment that it have effect only for a certain time. See also note 13 above.
[31] To illustrate the first point of view, consider what Laskin J. of the Supreme Court of Canada stated in Angle, supra, at page 268, which is quoted by D. Lange, op. cit., at page 31: "I see no reason to introduce any anomalies or exceptions to its general application if the facts call for it." Lange states: "In other words, if the three criteria or requirements of issue estoppel are met, issue estoppel should apply to the facts of the case." To illustrate the second line of thought, Lange writes at page 32:
In Minott v. O'Shanter Development Co., the Ontario Court of Appeal also held that, even if the requirements of issue estoppel are met, the court may exercise its discretion and refuse to apply it "when to do so would cause unfairness or work an injustice." Emphasis was placed on the exception of special circumstances as illustrative of this exercise of discretion. Laskin J.A., for the court, stated:
Issue estoppel is a rule of public policy and, as a rule of public policy, it seeks to balance the public interest in the finality of litigation with the private interest in achieving justice between litigants. Sometimes these two interests will be in conflict, or at least there will be tension between them. Judicial discretion is required to achieve practical justice without undermining the principles on which issue estoppel is founded. Issue estoppel should be applied flexibly where an unyielding application of it would be unfair to a party who is precluded from relitigating an issue.
[32] See in particular the passage from Angle quoted in paragraph [61].
[33] See Minott v. O'Shanter Development Co., 42 O.R. (3d) 321, [1999] O.J. No. 5 (at page 8 of the Quicklaw printout). See also the quotation from Hoystead reproduced above in paragraph [61].
[34] This fact could, it seems to me, be the "legal fact" (synonym of "cause") in the application of the rule of the authority of a final judgment. See the discussion of the concept of cause below.
[35] Quoted by Beetz J. in Soucisse, supra, at page 361.
[36] He took the same approach in Rawleigh Co. v. Alex. Dumoulin, [1926] S.C.R. 551.
[37] Tellier and Frappier JJ. of the Superior Court of Quebec took a similar approach in Québec (Procureur général) v. Tribunal d'arbitrage de la fonction publique, [1998] R.J.Q. 2771 - see paragraphs 8 and 9 in particular-and Gaz Métropolitain inc. v. Bacon America inc., [2001] J.Q. No. 6154 (Q.L.).
[38] It was much more difficult to reject estoppel by representation, since it seems that that fin de non-recevoir did not have the same scope in the civil law. It was a question of applying it in a case in which there was no specific rule in the civil law.
[39] It is not entirely true that this condition poses no problems. See my comments at paragraph [137] below.
[40] The expression "immediate object" will be used to designate that object. As will be seen in the next paragraph, that object may be "material" or "abstract".
[41] The expression "inherent object" will be used to designate this concept.
[42] Royer, op. cit., p. 502, No. 835.
[43] The relevant facts can be summarized briefly as follows. They are relatively complex, but basically, Langevin had sold his grocery store to Pesant, who had promised to assume some of Langevin's debts. Those debts not having been paid by Langevin, three of his creditors, Lion, Bastien and Raymond, obtained judgment for the payment of their claims. In those three actions, Langevin called Pesant in warranty. The three cases were joined for hearing. The Superior Court ruled in favour of the three creditors against Langevin and in favour of Langevin in his recourses in warranty against Pesant. Pesant appealed two of the decisions on the actions in warranty, namely, the decisions concerning the debts to Bastien and Raymond. Langevin pleaded the authority of a final judgment as a fin de non-recevoir. Since Pesant had not appealed the decision concerning Lion's claim, there was a final judgment in that action. The decision concerning Lion therefore had to have the authority of a final judgment in the other two cases appealed to the Court of Appeal, that is, the appeals concerning the claims of Bastien and Raymond. The Court of Appeal agreed with Langevin on this point.
[44] It is the inherent object.
[45] Since the immediate material object in the decision concerning Lion was not the same as in the other two cases (those of Bastien and Raymond), there could be no identity of object. However, according to Rivard J.A.'s analysis, the abstract or inherent object was the same in the three cases.
[46] It is worth briefly recalling the facts of the case to properly understand the context in which the conditions for identity were applied. A professional liability suit was brought against the appellant, a notary, in connection with a legal opinion given to the respondents. The respondents had refused to go forward with an offer to purchase an immoveable property because the notary, who was to draw up the deed of sale, had concluded that there was a defect in title when he examined the chain of title. The vendor of the property had acquired his title from his wife, who had acquired it from a caisse populaire. The caisse populaire had obtained title to the property as a result of a default judgment of the Superior Court granting it title following the exercise of a giving in payment clause. The hypothecary loan that the giving in payment clause accompanied had been granted by the caisse populaire to a Paul Leclerc (P.L.), and the caisse had had the deed of loan on the property registered. However, P.L. was not the owner of the property, which was actually registered in the name of P.L. Inc.
P.L. and P.L. Inc. made assignments in bankruptcy, and the same trustee was appointed for both bankrupt estates. After P.L. defaulted on his loan, the caisse populaire took proceedings against the trustee. The proceedings were served on the trustee of the bankrupt estate of P.L., on P.L. personally and on P.L. Inc. As none of the defendants appeared to defend the action, the caisse obtained a default judgment granting it title to the property.
When the respondents were sued by the vendor for damages for breach of contract, they exercised a recourse in warranty against the appellant, the notary, on the basis that it was on his advice that they had refused to purchase the property.
The Superior Court found that the notary had committed a professional error and ordered him to pay damages. The Supreme Court of Canada affirmed that decision, saying that, in doing his title search, the notary had committed professional fault in concluding that there was a defect in title and in ignoring the authority of a final judgment as regards the caisse populaire's judgment. That judgment had transferred valid title to the caisse despite the defect in the creation of the hypothec. As a successor to the caisse's rights, the vendor had to be considered one of the parties to whom the judgment applied. It should also be noted that there would have implicitly been identity of parties in a possible suit against the respondents by P.L. Inc., since, if the respondents had become the owners of the property, they too would have been the successors in title of the caisse populaire.
[47] I will use the term "raw facts" to refer to this concept.
[48] I will use the term" rule of law" to refer to this specific concept.
[49] I will use the term "legal fact giving rise to a right" or "legal fact in accordance with some rule of law" as a synonym of this concept of cause.
[50] These are the raw facts.
[51] This is the narrow approach.
[52] This is the general approach.
[53] Royer, op. cit., p. 502, No. 834.
[54] That is, the narrow approach to cause.
[55] According to the approach taken by L'Heureux-Dubé J., the inexecution of that undertaking would be the "concrete" cause of action.
[56] In Wierbicki v. R., 2000 CarswellNat 502, 2000 DTC 6243, [2000] 2 C.T.C. 517, res judicata was applied in an appeal brought outside Quebec. In Modlivco Inc. v. The Queen, [1995] 2 C.T.C. 2880, 95 DTC 692, and Modlivco Inc. v. The Queen, 96 DTC 1516, the appeals concerned an assessment for the same year; the second appeal did not involve a subsequent year.
[57] Two exceptions that come to mind are the assessments under sections 160 and 227.1 of the Act, but those provisions concern taxes owed by other people for taxation years (in the case of section 160) or for source deduction periods (in the case of section 227.1).
[58] For a real case, see Construction Bérou Inc. v. The Queen, 99 DTC 5868.
[59] The conditions that must be met to be entitled to CCA are set out, inter alia, in subsection 13(21) and paragraph 20(1)(a) of the Act and in Part XI of the Income Tax Regulations (Regulations).
[60] This is a final decision.
[61] It must be remembered that the issue of the authority of a final judgment should not arise for decisions made under the informal procedure.
[62] In appeals to the Court, the immediate material object is rarely present. Generally, there is an immediate abstract object or an inherent object (material or abstract). Since the amount of tax depends on an often complex series of computations prior to the assessment of that amount, the object of tax proceedings most often relates to a person's right to deduct an amount in computing income or taxable income or to the obligation to include certain amounts in income. This explains why there is usually an inherent object.
[63] According to the tax law rule (recognized in Minister of National Revenue v. Wardean Drilling Ltd., [1969] 2 Ex. C.R. 166), a person acquires property (i) if title to the property is transferred to the person (according to the civil law rule) or (ii) if all incidents of title are acquired by the taxpayer (even without title). It is therefore possible to be considered the owner of property under the tax rule even if one is not the owner under the civil law rule. It is also possible to be the owner under both the tax law rule and the civil law rule when one has acquired title. This is a situation of duality of causes, because there is a characterization of the raw fact (the acquisition of the truck) to which two different rules of law are applied (the tax law rule and the civil law rule). In the second scenario, the essence of the legal characterization of the facts is identical under either rule: it must therefore follow that there is identity of cause (see Gonthier J.'s comments in Rocois quoted in Roberge). On the other hand, the legal characterization is not the same in the first scenario, and there would be no identity of cause.
[64] As mentioned in the previous note, the judge who made the decision could simply have found that the taxpayer had acquired all the incidents of title. However, for the purposes of his decision, he chose the option of title to property. Having done so, that determination became essential to the recognition of the right to a reduction in tax.
[65] See Royer, op. cit., page 463, no. 789.
[66] I note that this tax treatment is similar to the treatment in Wierbicki, supra. In that case, the Federal Court of Appeal affirmed a decision by my colleague Judge Lamarre Proulx, who had found that res judicata existed with respect to the nature of losses carried forward from previous years (which had been decided by Judge Bowman) that were deducted in computing taxable income for a subsequent year (the year at issue in the appeal before Judge Lamarre Proulx).
[67] This rule (recognized in Olympia and York Developments Ltd. v. The Queen, [1981] 1 F.C. 691) is the counterpart of the tax law rule for acquisition. There is a disposition (i) if title to the property is transferred (civil law rule) or (ii) if the incidents of title are transferred.
[68] It is worth briefly recalling the relevant facts here. In computing Mr. Leduc's tax for 1997, the Minister had denied him a transfer of an unused tax credit for severe and prolonged physical impairment in respect of his spouse. In her reasons, the judge concluded that Mrs. Leduc's celiac disease led to a severe and prolonged physical impairment the effects of which were such that her ability to feed herself was markedly restricted because, even with therapy and medication, she was unable, or required an inordinate amount of time, to perform that basic activity of daily living. Given her total intolerance to the gluten found in most grain products, she had to compensate with replacement products not found in regular supermarkets. She had to go to grocery stores that were further away, consult product labels more and pay a higher price to purchase those products. Following that decision, the respondent filed an application for judicial review with the Federal Court of Appeal but withdrew the application shortly thereafter.
Although the decision was not in Mr. Leduc's favour for 1997, the Minister again denied the credit for physical impairment claimed by him in respect of his spouse for the 1999 taxation year. Mr. Leduc, finding himself before the same judge once again, relied, inter alia, on [translation] "the basic principles relating to the authority of a final judgment and the respect owed to the judicial system". The judge stayed the hearing of evidence on the merits so that the parties could submit their comments on the question of the fin de non-recevoir based on the authority of a final judgment. The judge applied the authority of a final judgment and issue estoppel to decide in Mr. Leduc's favour.
[69] The material object would have been the amount of the tax credit.
[70] Although section 118.3 of the Act is not very clear on this point, the context is such that it must be concluded that this condition must be met on a yearly basis.
[71] In Leduc, it was implied that, if the facts had been different or the Act had been amended, the fin de non-recevoir would not have been applied. With respect for those who hold the opposite view, this approach is inconsistent with the wording of article 2848 C.C.Q. as interpreted by the courts. Moreover, it should be recalled that the judge in the appeal for 1997 could not make any ruling as regards the appeal for 1999 because that year was not the subject of an appeal before her when she made her decision for 1997. If one must verify whether new facts for 1999 exist (which cannot be facts that could have been introduced in evidence for 1997 if one had been diligent) and whether the tax law rule has not changed from 1997, that is the best indication that the authority of a final judgment does not apply. If it really did apply, as is clearly the case with the appeal for 1997, then it would not even be possible to adduce new evidence of facts for the appeal for 1999 (even new facts that could not have been presented earlier if one had been diligent) or to make other legal arguments that, if they were admissible, could change the decision that has the authority of a final judgment.
[72] If we assume that, for his appeal for 1997, he had negligently forgotten (because he had not spent enough time preparing his appeal) to adduce detailed evidence of the time needed for shopping. According to the approach in Leduc, in which the rule of issue estoppel was applied, he could no longer do so.
[73] Occasionally, even companies (SMEs) apply to be released from the obligation to be represented by counsel.
[74] For the foregoing reasons, taxpayers would not have the same problem under the informal procedure, since the Court is not bound by any legal or technical rules of evidence in such cases.
[75] Although the Tax Court of Canada Rules (Informal Procedure) contain no provision similar to section 58 of the Rules, it was recognized in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at pages 968-69, that the Court has an inherent power to control the conduct of the cases it hears and to strike out a pleading.
[76] The relevant provisions are subsections 225(1) and (4):
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225(1) Net tax - Subject to this Subdivision, the net tax for a particular reporting period of a person is the positive or negative amount determined by the formula |
225(1) Taxe nette - Sous réserve des autres dispositions de la présente sous-section, la taxe nette pour une période de déclaration donnée d'une personne correspond au montant, positif ou négatif, obtenu par la formule suivante : |
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A- B |
A - B |
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where |
où : |
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A is the total of |
A représente le total des montants suivants : |
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(a) all amounts that became collectible and all other amounts collected by the person in the particular reporting period as or on account of tax under Division II, and |
a) les montants devenus percevables et les autres montants perçus par la personne au cours de la période donnée au titre de la taxe prévue à la section II; |
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(b) . . . |
b) [...]; |
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B is the total of |
B le total des montants suivants : |
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(a) all amounts each of which is an input tax credit for the particular reporting period or a preceding reporting period of the person claimed by the person in the return under this Division filed by the person for the particular reporting period, and |
a) l'ensemble des montants dont chacun représente un crédit de taxe sur les intrants pour la période donnée ou une période de déclaration antérieure de la personne, que celle-ci a demandé dans la déclaration produite en application de la présente section pour la période donnée; |
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(b) . . . |
b) [...] |
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(4) Limitation - An input tax credit of a registrant for a particular reporting period of the registrant shall not be claimed by the registrant unless it is claimed in a return under this Division filed by the registrant on or before the day that is four years after the day on or before which the return under this Division for the particular reporting period of the registrant is required to be filed. |
(4) Délai - L'inscrit qui demande un crédit de taxe sur les intrants pour sa période de déclaration doit produire une déclaration en application de la présente section dans les quatre ans suivant le jour où il est tenu de produire pour cette période la déclaration prévue par la présente section. |
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[77] Obviously, my analysis concerning the School Board applies to the rest of the 12 applicants.
[78] That amount took into consideration an amount that the School Board had already received as a partial GST rebate under subsection 259(3) ETA.
[79] Same comment as in the previous note.
[80] Under subsection 225(4) ETA, the School Board had four years to claim those ITCs.
[81] According to the neutral citation system recommended by the Canadian Judicial Council.
[82] See paragraphs 18 and 21 of the 2001 decision.
[83] The same would be true of the immediate material object.
[84] The following is the wording of that paragraph taken from Judge Lamarre Proulx's decision in Commission Scolaire Des Chênes v. The Queen, 2000 GTC 747:
18. The parties also agree that the amount of the ITC rebate claimed by the appellant or the other 28 school boards is not the subject of any admission, the parties moreover having agreed that, before complying with any final judgment eventually rendered in the appellants' favour, the Minister will have the opportunity to audit each and every application for input tax credits in order to validate diligently and within a reasonable time the accuracy of the amounts claimed;
[85] See subsection 169(1), item A, and subsection 225(4) ETA. In theory, the case could be reopened if the parties did not agree on these matters, and I therefore seriously doubt that the 2001 decision could be considered a final judgment. As Ducharme says in Précis de la preuve, supra, at page 170, No. 560, [translation] "final judgments are judgments which put an end to the dispute". In fact, this is not the case here. One of the essential conditions for the existence of the authority of a final judgment-that there be a final decision-might not be met. However, since this question was not argued during the hearing, I am not relying on this ground. I saw no point in reopening the argument on this question given my conclusion on the points argued by the parties with respect to the conditions for identity. For the rest of this analysis, I will proceed as if the 2001 decision were final and as if it recognized entitlement to ITCs for the 1992-96 ITC period.
[86] These legislative provisions are reproduced in paragraph 21 of the 2001 decision.
[87] Expression taken from paragraph (b) of the definition of "recipient".
[88] Even if articles 184 and 165(4) C.C.P. had been applicable, it is highly likely that the principles in Hunt would also have been applicable, since, as Royer (op. cit.) states, most of the procedural rules in the Code of Civil Procedure of Quebec originate in the common law. See paragraph [11] above.
[89] In my opinion, this conclusion clearly illustrates that a narrow interpretation of the concepts of object and cause must be adopted when applying tax legislation. As we can see, the 2001 decision did not deal with this question. Registered charity status was not argued. If a general interpretation of the concepts of object and cause had to be adopted in the context of tax legislation, this would mean here that the Minister could not argue a question for a subsequent year even though the question was not decided by the Federal Court of Appeal. Moreover, it must be remembered that article 2848 C.C.Q. provides that the authority of a final judgment "applies only to the object of the judgment". Here, this interpretation benefits the respondent, but, in other circumstances, it could just as easily work in favour of a taxpayer.