BRADMAN LEE Plaintiff v. HER MAJESTY THE QUEEN AND, 2018 FC 504

Date: 20180511 Docket: T-946-17 Citation: 2018 FC 504 Ottawa, Ontario, May 11, 2018 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:BRADMAN LEEPlaintiffandHER MAJESTY THE QUEEN AND THE MINISTER OF NATIONAL REVENUEDefendants JUDGMENT AND REASONS [1] Mr.

Bradman Lee (the "“Plaintiff”) "appeals from the Order of Prothonotary Aalto, dated September 8, 2017, granting the motion ofHer Majesty the Queen and the Minister of National Revenue ( the "“Defendants”") to strike out his Statement of Claim without leave toamend, on the grounds that it is scandalous, frivolous or vexatious and is an abuse of the process of the Court, within the meaning ofRule 221 of the Federal Courts Rules, SOR/ 1998 – 106 (the "“Rules”"). [2] In this appeal, the Plaintiff alleges that the Prothonotary did not understand the facts and showed bias in favour of the Defendants. [3] The Plaintiff is a Canadian taxpayer residing in Ontario.

In his Statement of Claim, he alleges wrongdoing in the manner in which hewas treated by the Defendants relative to assessments for income tax and GST under the Income Tax Act, R.S.C., 1985, c. 1 (5th Supp.),and the Excise Tax Act, R.S.C., 1985, c.

E-15. [4] In his Order, the Prothonotary reviewed the history of litigation undertaken by the Plaintiff before the Ontario Court of Justice, theSuperior Court of Justice of Ontario , the Court of Appeal for Ontario, the Tax Court of Canada, the Federal Court of Appeal and theSupreme Court of Canada. [5] The proceedings in the Ontario Courts were related to the conviction of the Plaintiff upon charges of filing false and misleading taxreturns; the proceedings before the Tax Court and on appeal to the Federal Court of Appeal related assessments for payment of GST.

ThePlaintiff sought leave to appeal before the Supreme Court of Canada in respect of both the proceedings in the Ontario Courts and beforethe Tax Court and the Federal Court of Appeal. The applications for leave were dismissed. [6] In deciding the motion brought by the Defendants to strike the Plaintiff’s Statement of Claim in the present action, the Prothonotarysaid the following: In the circumstances of this case the facts alleged in the Claim cannot be accepted as true on their face as there are clear andspecific findings of other Courts which clearly contradict what is in the Claim.

As is obvious from the history of Mr. Lee’sinvolvement with the judicial system, clear and unequivocal findings have been made regarding what happened, all of whichwere subjected to the appellate process. The doctrine of re judicata applies. These matters have been finally and conclusivelydetermined against the interests of Mr. Lee and the Claim is therefore scandalous, frivolous, vexatious and, as noted, anabuse of process as defined in the Rules of the Court. There are no reasonable causes of action alleged and the Claim isbereft of any chance of success.

One example of this relates the claim for malicious prosecution. That tort requires a findingthe claimant was not guilty of the charges alleged. That is clearly not the case here. Those convictions, in large part, are thefoundation of the Claim [7] The test upon a motion to strike a pleading is set out in the decision in Hunt v. Carey Canada Inc., (SCC), [1990] 2S.C.R. 959, that is whether it is plain and obvious that the pleading discloses no reasonable cause of action According to the decision inBérubé v.

Canada (2009), 348 F.T.R. at paragraph 24, a claim must show the following three elements in order to disclose a reasonablecause of action i. Allege facts that are capable of giving rise to a cause of action ii. Indicate the nature of the action which is to be founded on those facts, and iii. Indicate the relief sought, which must be of a type that the action could produce and that the court has jurisdiction togrant [8] The test upon an appeal from the Order of a prothonotary is set out in the decision in Hospira Healthcare Corporation v. TheKennedy Institute of Rheumatology et al, 2016 FCA 215.

An Order of a Prothonotary will not be reversed unless there is palpable andoverriding error with respect to factual conclusions or for questions of law or mixed fact and law; where a legal principle is in issue, thestandard of corrections will apply. [9] An Order upon a motion to strike a statement of claim involves the exercise of discretion, as informed by the relevant jurisprudence.

"[""10""] " As noted by Prothonotary Aalto, the Defendants relied upon Rule 221 of the Rules in bringing their Motion to Strike. Rule221 provides as follows:" " "221

(1) On motion, the Court may, at anytime, order that a pleading, or anythingcontained therein, be struck out, with orwithout leave to amend, on the ground that it" "221

(1) À tout moment, la Cour peut, surrequête, ordonner la radiation de tout oupartie d’un acte de procédure, avec ou sansautorisation de le modifier, au motif, selon lecas : ""(

a) discloses no reasonable cause of actionor defence, as the case may be, " "

a) qu’il ne révèle aucune cause d’action oude défense valable; ""(

b) is immaterial or redundant, " "

b) qu’il n’est pas pertinent ou qu’il estredondant; ""(

c) is scandalous, frivolous or vexatious, " "

c) qu’il est scandaleux, frivole ou vexatoire;""(

d) may prejudice or delay the fair trial ofthe action, " "

d) qu’il risque de nuire à l’instructionéquitable de l’action ou de la retarder; ""(

e) constitutes a departure from a previouspleading, or " "

e) qu’il diverge d’un acte de procédureantérieur; ""(

f) is otherwise an abuse of the process ofthe Court, " "

f) qu’il constitue autrement un abus deprocédure. ""and may order the action be dismissed orjudgment entered accordingly. " "Elle peut aussi ordonner que l’action soitrejetée ou qu’un jugement soit enregistré enconséquence. ""

(2) No evidence shall be heard on a motionfor an order under paragraph (1)(a). " "

(2) Aucune preuve n’est admissible dans lecadre d’une requête invoquant le motif visé àl’alinéa (1)a). " [11] According to the decision in Condon v. Canada (2015), 2015 FCA 159 , 474 N.R. 300 allegations in a statement of claimare presumed to be true. However, as noted by the Prothonotary, the alleged facts "“are only to be taken to be true if they are provable”".The Prothonotary determined that the Plaintiff’s Statement of Claim disclosed no reasonable cause of action but, rather, on the knownfacts, constitutes an abuse of process. [12] In OIeynik v.

Canada (Attorney General) 2014 FC 896, the Court said the following at paragraph 23: [23] It is an abuse of process to re-litigate essentially the same dispute when earlier attempts at relief have failed; see thedecision in Black v. NsC Diesel Power Inc. (Bankrupty) et al. (2000), (FC), 183 F.T.R. 301 at paragraph11. The substance of this dispute has already been considered by this Court on two previous occasions. In both cases, theapplications were dismissed; see the decisions in Oleinik v. Canada (Privacy Commissioner), 2011 FC 1266, affirmed byOleinik v.

Canada (Privacy Commissioner) 2012 FCA 229, and Oleinik v Privacy Commissioner (Can.) (2013), 2013 FC 44, 425 F.T.R. 228.

The Plaintiff’s present action is therefore an abuse of process. [13] In my opinion the same principle applies here. [14] Upon reading the Order of Prothonotary Aalto, I am satisfied that he made no error in granting the Defendants’ motion. [15] The Prothonotary determined that the allegations in the Plaintiff’s Statement of Claim relate to matters that have been adjudicatedand decided, with recourse to all available levels of appeal, up to and including applications for leave to appeal to the Supreme Court ofCanada.

He determined that the presentation of these allegations in the Statement of Claim offend the principle of res judicata, as foundby Justice Woods, then writing as a judge of the Tax Court of Canada. [16] The Prothonotary did not err in his appreciation of the facts nor in his application of the law. He did not err in finding that the issuesraised by the Plaintiff in his Statement of Claim or claim have been litigated. He made no "“ palpable and overriding error”" and theappeal will be dismissed. [17] There is no support for the Plaintiff’s allegation of bias.

The test for a finding of bias is high; see the decision in Committee forJustice and Liberty v. National Energy Board, (SCC), [1978] 1 S.C.R 369 at pp. 394-95. The fact that the Prothonotarygranted the Defendants’ motion to strike does not show bias. [18] The Defendants did not seek costs upon this motion. In the exercise of my discretion, pursuant to the Rules, no costs will beawarded. JUDGMENT in T-946-17 THIS COURT’S JUDGMENT is that the appeal is dismissed, no order as to costs. “E. Heneghan” Judge

FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-946-17 STYLE OF CAUSE: BRADMAN LEE V. HMQ ET AL PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: OCTOBER 3, 2017 JUDGMENT AND REASONS HENEGHAN J. DATED: MAY 11, 2018 APPEARANCES: Bradman Lee FOR THE PLAINTIFF (ON HIS OWN BEHALF) Kaitlin Coward FOR THE DEFENDANTS SOLICITORS OF RECORD: N/A FOR THE PLAINTIFF (ON HIS OWN BEHALF) The Attorney General of Canada Toronto, Ontario FOR THE DEFENDANTS