APPEAL DISMISSED

Ostiguy v. Allie, 2017 SCC 22 (Prescription — Acquisitive prescription — Immovables)

On appeal from a judgment of the Quebec Court of Appeal (2015 QCCA 1368) affirming a decision of Dumas J. (2013 QCCS 5808).

Between 1994 and 2011, A and her family used one or two parking spaces situated on the property of their then neighbour in full view of everyone, and there was no objection to their doing so. Between 2004 and 2011, after 10‑year prescription had been acquired, A nevertheless did not bring legal proceedings to have her right recognized. In 2011, O and S purchased this neighbouring lot by act of sale. A few months after taking possession of their property, they applied for an injunction to stop A from parking on it. A replied by arguing that she had acquired the parking spaces by 10‑year prescription and that that acquisition took precedence over the title of O and S that was registered in the land register.

The Superior Court agreed with A in part, holding that the evidence showed that she had acquired by prescription one of the two parking spaces she claimed. In the Court of Appeal, the majority dismissed the appeal, concluding that the legislature had not, in enacting art. 2918 of the Civil Code of Québec (“C.C.Q.”), intended to change the principles that applied to acquisitive prescription at the time of its enactment. They observed that acquisitive prescription makes it possible to prove the existence of a right of ownership, whereas the role of land registration is not that of a guarantee of title. A’s possession could be set up against an owner whose title was registered in the land register. The dissenting judge, on the other hand, would have allowed the appeal and confirmed the title of O and S. He argued that the right to prescribe acquired by A in 2004 is distinct from the real right she was seeking, which can be obtained only upon a judicial application under art. 2918 C.C.Q. In his opinion, the judgment resulting from that application is an essential condition for acquiring ownership by prescription. A thus had to obtain such a judgment and publish her right to be able to set it up against O and S.

Held (6-1): The appeal should be dismissed

Per McLachlin C.J. and Moldaver, Karakatsanis, Wagner, Gascon and Brown JJ.:

The parties on each side in this case have a legitimate right to assert. O and S acquired their title legally, by act of sale. A’s effective possession of one of the parking spaces on her neighbours’ lot is recognized and is just as legitimate. What must be done in order to determine which of the parties should prevail is to define the respective roles of acquisitive prescription and the publication of rights in Quebec civil law, and then to interpret and apply the relevant provisions of the C.C.Q., taking into account its overall scheme and its consistency.

In the C.C.Q., acquisitive prescription is recognized as a “means of acquiring a right of ownership, or one of its dismemberments, through the effect of possession” (art. 2910 C.C.Q.). The possessor must prove that, for at least 10 years in the case of an immovable, he or she in fact exercised the right in question with the intention of exercising it as the holder of the right. His or her possession must be “peaceful, continuous, public and unequivocal” in order to produce effects (art. 922 C.C.Q.). A possessor claiming ownership of an immovable must also obtain a judgment confirming the right so acquired.

As for the role of the publication of rights, it did not change significantly with the enactment of the C.C.Q. Although the Civil Code Revision Office had initially, in 1977, proposed a substantial modification in procedures and in the consequences of the publication of immoveable rights that was based on the cardinal principle of absolute confidence in titles, the Quebec legislature did not carry the reform through to completion. In fact, it abandoned the reform in 2000, confirming the traditional purely declarative role of publication. This decision to abandon most of the reform of the land register confirms that under the current C.C.Q., for rights acquired by prescription to be set up against third parties, there is no greater requirement that they be published than was the case under the Civil Code of Lower Canada (“C.C.L.C.”).

Thus, it can be seen that the effect of the distinct roles of acquisitive prescription and the publication of rights is that rights validly acquired by prescription apply regardless of the rights registered in the land register. This solution is the one that is most consistent with the general scheme of the C.C.Q. and with the relevant provisions on prescription, as well as on the publication of rights and on sale.

This solution is consistent with art. 2885 C.C.Q., which requires the publication of a renunciation of acquired prescription with respect to immovable real rights. Given that acquired prescription jeopardizes a right that is registered in the land register, a renunciation thereof must be published to enable third parties to take notice of it. The solution is also consistent with art. 2957 C.C.Q.,which provides that “[p]ublication does not interrupt prescription”. It would indeed make no sense to conclude that the publication of rights cannot interrupt prescription while the period is still running, but that it can negate the effects of prescription that has already been acquired.

This solution is also consistent with the repeal of art. 2962 C.C.Q., the effect of which was that third parties could no longer rely entirely on entries in the land register. As for the theory of apparent rights, there is nothing to suggest that the legislature intended it to apply more generally in situations other than the ones in which the legislature decided to specifically recognize it. In any event, if it did apply, there would be no reason why appearances of right created artificially by the land register should prevail over the tangible appearances of right that result from effective possession. Finally, this solution is just as consistent with art. 1724 para. 2 C.C.Q., which preserves the rights of all parties. Under that provision, the seller warrants the buyer “against any encroachment commenced with his knowledge by a third person before the sale”. Thus, although it is true that in this case the acquisitive prescription A has set up against O and S denies them a portion of the right of ownership that the act of sale purported to transfer to them, it is nevertheless possible for them to claim the corresponding loss from their predecessors in title if they can prove that the latter were aware of A’s encroachment before the sale and failed to disclose it to them.

As for the advance registration of a judicial application concerning a real right that is provided for in arts. 2966 and 2968 C.C.Q., it is of no assistance in the case of acquisitive prescription. The effective possession on which this form of prescription is based is already public and can already be set up against third parties. Since acquisitive prescription has its effects regardless of any rights registered in the land register, there is no need for a possessor to register a judicial application in advance in order to protect his or her rights.

Finally, the nature of the judgment under art. 2918 C.C.Q. is not determinative of the issue before the Court. In any event, the sole purpose of that judgment is to recognize pre‑existing rights resulting from effective possession and the lapse of time; when all is said and done, the legislature merely intended to restore the situation that existed under the C.C.L.C. in this regard. It is true that when the C.C.Q. was enacted in 1991, the legislature seems to have intended that acquiring ownership of an immovable by prescription should be contingent upon obtaining a judgment. However, the role of art. 2918 C.C.Q. was altered when the reform of the publication of rights system was subsequently suspended and abandoned. That article and the relevant provisions of the Code of Civil Procedure should instead be interpreted in light of the abortive reform and the many changes that resulted from it. This leads to the conclusion that prescription depends on achieving effective possession, not on obtaining a judgment; it is acquisitive prescription that grants the right, not the judgment. In fact, the judgment attests to the existence of a pre‑existing right; it does not create a new right. In this respect, the requirement in art. 2918 C.C.Q. is more like a procedural condition than a substantive one. All these characteristics suggest a nature that is more declarative than right-granting or constitutive.

In the end, the solution adopted in this case does not weaken the land register and introduces no more uncertainty into real estate transactions in Quebec than there already was. Rather, it accounts for the inevitable effect of acquisitive prescription, a key institution of Quebec civil law that has been recognized by the legislature and whose purpose is to ascribe legal consequences to possession that is already peaceful, continuous, public and unequivocal.

Per Côté J. (dissenting):

Under art. 2918 of the Civil Code of Québec (“C.C.Q.”), the acquisition of ownership of an immovable by prescription is conditional on first obtaining a judgment following a judicial application. That judgment is constitutive of the right of ownership and without retroactive effect. Reading down the plain language of art. 2918 so as to render the judgment declaratory and retroactive cannot be reconciled with the legislative balance struck between the right of ownership and the operation of prescription. Such a reading is also inconsistent with the property and publication books of the C.C.Q., and with the rationale behind acquisitive prescription.

The concept of prescription operates in tension with real rights, including the primordial real right in the C.C.Q., ownership. Prescription is nonetheless grounded in a valid two‑fold purpose. First, it operates to efficiently quiet title such that a party to a translatory act need not prove the validity of each link in the chain of title. Second, it operates so as to allow a possessor in fact to acquire the right of ownership to the detriment of the true owner, whose own right is extinguished. In both cases, the regime of prescription has a clear underlying rationale: to promote the efficiency, stability and security of property relationships.

In the modern era, this rationale is only served by recognizing that the conditions for acquisitive prescription of an immovable did in fact change with the introduction of the C.C.Q. Previously, under art. 2242 of the Civil Code of Lower Canada (“C.C.L.C.”), a possessor in bad faith and without title could acquire an immovable only after possessing it for 30 years. Article 2251 C.C.L.C. provided for prescriptive acquisition after only 10 years, but only if the possessor in good faith could found his or her possession upon a translatory title. Article 2918 C.C.Q. replaced these conditions with a single possessory period of 10 years, regardless of the good or bad faith of the possessor, or the presence or absence of translatory title.

In view of these changes — and given that a reduction in the prescription period inherently affects the balance between the rights of the possessor and those of the true owner — art. 2918 imposes a requirement that the possessor may acquire the right of ownership only upon a judicial application. This requirement has no antecedent in the C.C.L.C., and as a result its meaning cannot be defined by reference to practices prevailing under the C.C.L.C.

The abandonment of the land register reform did not relieve possessors of art. 2918’s judicial application requirement. To the contrary, a careful reading of the legislative history of art. 2918 C.C.Q. and s. 143 of the Act respecting the implementation of the reform of the Civil Code reveals that the legislature intended the judgment on the judicial application to be constitutive of the right of ownership and without retroactive effect. Rather than merely surviving the legislature’s purge following the abandonment of the reform, the judicial application requirement took on added importance given that the reduction of the prescription period to 10 years — which was initially premised on the successful completion of the register reform — was maintained. Under the current art. 2918, the lapse of time alone no longer gives the possessor a right of ownership; only a judgment can do that. Holding otherwise conflates possession in fact with the creation or transfer of real rights, and fundamentally upsets the legislative balance struck between the rights of the possessor and those of the true owner.

Giving effect to the plain wording of art. 2918 is consistent with the C.C.Q.’s publication regime which, pursuant to art. 2966(1) permits a possessor to register the judicial application in advance of obtaining the necessary judgment under art. 2918. Under art. 2968(1), the date of advance registration is then deemed to be the date of publication. The effect of these articles is to encourage a prudent possessor who has complied with the wording of art. 2918 to register the judicial application in advance. This aligns art. 2918 with the general publication requirement in art. 2938 C.C.Q. for the “acquisition, creation, recognition, modification, transmission or extinction” of immovable real rights. It also minimizes the prospect of litigation and priority contests, and promotes the efficiency, stability and security of relationships between title holders by encouraging publication. Treating the judgment under art. 2918 as if it had a declarative and retroactive effect does not.

In this case, A did not make the required judicial application under art. 2918 until well after O and S acquired title to the contested immovable and published their title in the land register. O and S are therefore prior in time and — as revealed by the register — prior in rank. The result is that A’s possession is not opposable against O and S’s title.

Reasons for judgment: Gascon J. (McLachlin C.J. and Moldaver, Karakatsanis, Wagner and Brown JJ. concurring)

Dissenting Reasons: Côté J.

Neutral Citation: 2017 SCC 22

Docket Number: 36694

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16516/index.do

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

 

37361

Eze Mbachu v. Her Majesty the Queen

(Alta.)

Criminal law –– Elements of offence –– Defences

Mr. Mbachu was driving on a highway alone in breach of a condition of his learner’s permit that he had to be accompanied by a fully licenced driver. Despite stop signs, flashing red lights, warning signs and rumble strips, he failed to stop at an intersection and he struck another vehicle. The other driver was killed in the accident. On appeal he sought to file fresh evidence based upon which he sought to argue that, after the accident, he was diagnosed with obstructive sleep apnea and he may have been asleep at the time of the accident. He was convicted of dangerous driving causing death. The Court of Appeal dismissed the appeal.

37354

Abdourahmane Diallo v. Compagnie Nationale Royale Air Maroc

(Ont.)

Civil procedure – Limitation of actions

The plaintiff sought damages arising from the alleged cancellation of the return segment of a contract for international carriage by air that he had entered into with the respondent on July 30, 2011. The respondent, Compagnie Nationale Royale Air Maroc (“RAM”), argued that it had been required to cancel the scheduled flight back to Montréal on November 5, 2011 due to technical issues and that all passengers had been apprised that they were confirmed on a replacement flight also returning on November 5, 2011. Prior to commencing his action, the applicant had sought compensation from RAM in respect of the same allegations made in the claim in question by filing an application with the Canadian Transportation Agency (“CTA”), which had adjudicated his complaint through a specialized quasi-judicial process and dismissed it in a decision dated June 29, 2015. The applicant did not seek review of the CTA’s decision, nor did he appeal it. The Court of Appeal dismissed the appeal.

37407

Martin Green v. Deb Woloshyn, Wally Stewart, John Anchan and The University of Winnipeg

(Man.)

Contracts – Breach – Remedies

The applicant commenced an action for damages against the respondents after being removed from a teaching practicum while enrolled at the University of Winnipeg. The respondents’ motion for summary judgment was dismissed. Emond J. granted the respondents’ motion for summary judgment. The Court of Appeal dismissed the appeal.

37374

H.R.C. Tool & Die Mfg. Ltd. v. Medhrdad Naderi, Onkar Bahra and Prowest Machine Ltd.

(Alta.)

Fiduciary duty – Post-employment fiduciary duties – Scope

The respondents Medhrdad Naderi and Onkar Bahra are former employees of H.R.C. Tool & Die Mfg. Ltd. (“H.R.C.”), applicant. In the summer of 2008, they resigned, and in the fall of that same year, they started their own business, the respondent Prowest Machine Ltd, which services many of the same clients as H.R.C. H.R.C. sued the former employees for breach of fiduciary duties. It claimed they misused confidential information and solicited its clients. The former employees filed a counterclaim alleging that H.R.C. owed them back pay for bonuses. The trial judge dismissed the claim and counterclaim. The Court of Appeal agreed with H.R.C. that the former employees were fiduciaries. However, the appeal was dismissed on the basis that there was insufficient evidence to establish any breach of fiduciary duty.

37369

Her Majesty the Queen in Right of Saskatchewan as represented by the Minister of Social Services, Public Guardian and Trustee for Saskatchewan v. Cori Pederson, Bernice Rita McInnes

(Sask.)

Civil procedure – Class actions – Certifications

The respondents commenced an action against the applicants on behalf of children who had been placed either in foster care with the Saskatchewan Ministry of Social Services or under the management of the Public Guardian and Trustee. They sought certification of a class action as proposed representative plaintiffs, describing the class as “all persons, including their estates, who while a resident in Saskatchewan suffered personal injury while a minor as a result of a crime or tort by a third party and on or after 1959, while in the custody of the Minister responsible for social services for whom the Defendants did not make a claim under the Criminal Injuries Compensation Act or the Victims of Crime Act, or commence a civil action to obtain compensation on their behalf, or hire a lawyer to represent their interests”. The Court of Queen’s Bench of Saskatchewan dismissed the application for certification as class action. The Court of Appeal for Saskatchewan dismissed the respondents’ application to admit fresh evidence, allowed the appeal, certified the class action in accordance with its reasons and remitted the matter to the chambers judge to determine the formulation of the identifiable class or subclasses if necessary.

37378

Allan M.R MacRae and Amira Summer MacRae, by Her Litigation Representative Allan M.R. MacRae v. Constable S. Feeney with the City of Calgary Police Service, Constable S. Dyck with the City of Calgary Police Service, Richard Hanson in his capacity as The Chief of Police of the City of Calgary Police Service and the City of Calgary

- and between -

Allan M.R. MacRae and Amira Summer MacRae, by Her Litigation Representative Allan M.R. MacRae v. Constable I.D. Reid, Constable S.W. Sinclair, Constable M.R. Strong, Constable J.R. Shorkey, Constable John Doe and Constable Richard Roe, all with the City of Calgary Police Service, Richard Hanson and Paul Cook in their capacities as The Chief of Police of the City of Calgary Police Service and the City of Calgary

(Alta.)

Charter of Rights — Police arresting applicant for domestic assault

A fight occurred between the applicant Allan MacRae and his then wife. Mr. MacRae was arrested and charged with assault; he was acquitted by reason of self-defence. Mr. MacRae brought a lawsuit against the police and the city for negligent investigation, unlawful arrest and imprisonment, breach of Charter rights and other torts. Mr. MacRae advanced similar claims on behalf of his 4-year old daughter. He then also alleged that his daughter had been assaulted by her aunt, and was at risk of assault by her mother. Mr. MacRae filed a second lawsuit against the police, on his own behalf and on behalf of his daughter, alleging that police had failed to properly investigate the complaints about his wife and his wife’s sister. He also alleged that police had made defamatory statements about him, which were then recorded in police occurrence reports. The police and the city filed applications to strike all of Mr. MacRae’s claims in both actions.

The Court of Queen’s Bench dismissed the majority of Mr. MacRae’s claims in both actions. The only exception was the claim for negligent investigation of events during his arrest; there was sufficient evidence on the record to allow this claim to proceed to trial. All remaining claims were struck for various reasons, including lack of proximate connection between the alleged conduct and the alleged damages, inadequate pleadings, improper identification of parties, lack of a duty of care owed by police, and lack of evidence. A majority of the Court of Appeal dismissed Mr. MacRae’s appeal, finding that the chambers judge committed no error in his analysis or his conclusions. A dissenting judge would have partially allowed the appeal only with respect to the defamation claim, enabling it to proceed alongside the negligent investigation claim.

37295

Jamie Daniel Nenasheff v. Canada (Minister of Justice)

(B.C.)

Canadian Charter of Rights and Freedoms – Criminal law – Extradition

The United States of America seeks the extradition of Jamie Nenasheff, among others, for conduct which corresponds to offences under Canadian law of trafficking in a controlled substance and conspiracy to traffic in a controlled substance contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and s. 465 of the Criminal Code. The committal judge concluded that the direct evidence against the applicant, and the inferences to be drawn from it, could reasonably support his being found guilty of the comparable offences had they been committed entirely within Canada, and ordered that he be committed into custody to await surrender. Surrender was subsequently ordered by the Minister of Justice. The B.C. Court of Appeal dismissed the appeal from the committal order, from which leave to appeal was not sought. The applicant’s application for judicial review to the B.C. Court of Appeal, seeking to set aside the Minister’s surrender order, was dismissed. Mr. Nenasheff seeks leave to appeal from that dismissal.

37293

Aaron Randolph Anderson v. Canada (The Minister of Justice)

(B.C.)

Canadian Charter of Rights and Freedoms – Criminal law – Extradition

The United States of America seeks the extradition of Aaron Anderson, among others, for conduct which corresponds to offences under Canadian law of trafficking in a controlled substance and conspiracy to traffic in a controlled substance contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and s. 465 of the Criminal Code. The committal judge concluded that the direct evidence against the applicant, and the inferences to be drawn from it, could reasonably support his being found guilty of the comparable offences had they been committed entirely within Canada, and ordered that he be committed into custody to await surrender. Surrender was subsequently ordered by the Minister of Justice. The B.C. Court of Appeal dismissed the appeal from the committal order, from which leave to appeal was not sought. The applicant’s application for judicial review to the B.C. Court of Appeal, seeking to set aside the Minister’s surrender order, was dismissed. Mr. Anderson seeks leave to appeal from that dismissal.

37294

Ivan Djuracic v. Canada (Minister of Justice)

(B.C.)

Canadian Charter of Rights and Freedoms – Criminal law – Extradition

The United States of America seeks the extradition of Ivan Djuracic, among others, for conduct which corresponds to offences under Canadian law of trafficking in a controlled substance and conspiracy to traffic in a controlled substance contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and s. 465 of the Criminal Code. The committal judge concluded that the direct evidence against the applicant, and the inferences to be drawn from it, could reasonably support his being found guilty of the comparable offences had they been committed entirely within Canada, and ordered that he be committed into custody to await surrender. Surrender was subsequently ordered by the Minister of Justice. The B.C. Court of Appeal dismissed the appeal from the committal order, from which leave to appeal was not sought. The applicant’s application for judicial review to the B.C. Court of Appeal, seeking to set aside the Minister’s surrender order, was dismissed. Mr. Djuracic seeks leave to appeal from that dismissal.

37291

Mitra Kermani v. Hung-Fung-Yuen Products Corp., Thomas Wong

(Ont.)

Civil procedure – Summary judgment

The applicant Mitra Kermani’s brother entered into an Agreement of Purchase and Sale to buy property from the respondent Hung-Fung-Yuen Products Corp. (“Hung-Fung-Yuen”), for $399,995. The respondent Mr. Wong was Hung-Fung-Yuen’s agent. When the transaction did not close, her brother walked away from the deal and forfeited his deposit of $5,000.

Ms. Kermani sued for damages and specific performance. She alleged that she was the real buyer, and that she was owed money from the respondents because she had done work on the property.

On summary judgment, the Superior Court of Justice dismissed Ms. Kermani’s claim. Hood J. found that Ms. Kermani did not have a cause of action. In his view, Ms. Kermani was never a party to the agreement and accordingly had no basis to sue for specific performance, even if her claim was timely, which it was not. Furthermore, Hood J. found that both she and her brother were told that any work or expenses would be at their risk and that the vendor would not reimburse them for any expenses. Both of them agreed to these terms, and Ms. Kermani’s brother signed a release for himself and his assigns, releasing the vendor from any liability for allowing access to the property prior to closing.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that Ms. Kermani had no cause of action and that there was no genuine issue requiring a trial.

37390

Jonathan Pépin v. Her Majesty the Queen

(Que.)

Criminal law – Sentencing – Terms of intermittent sentence of imprisonment

The applicant Mr. Pépin pleaded guilty to unlawful possession of a tobacco product that was not stamped, contrary to s. 32(1) of the Excise Act, 2001, S.C. 2002, c. 22. He was given a 60‑day intermittent sentence of imprisonment to be served on weekends, from 9:00 a.m. on Saturday until 4:00 p.m. on Sunday, starting on June 25, 2016. Two weeks after he was sentenced, Mr. Pépin asked the same judge to vary the terms of his sentence for medical reasons. The judge granted the request and varied the sentence so it would be served on Saturdays and Sundays from 9:00 a.m. to 4:00 p.m. starting on July 1, 2016. The Court of Appeal allowed the Crown’s appeal on the ground that the sentencing judge was functus officio and therefore had no jurisdiction to vary (and in this case, reduce) the sentence. The Court of Appeal explained that a party who is dissatisfied with a sentence imposed must appeal the sentence.

37328

Joshua Allen Caswell v. Her Majesty the Queen

(Alta.)

Charter of Rights and Freedoms — Criminal law — Motor vehicles

The applicant, Mr. Caswell, was convicted of failing without lawful excuse to comply with a demand made to him as a motorist by a police officer to provide a breath sample suitable for analysis by an approved screening device, under s. 254(2) of the Criminal Code. When the officer made the screening device demand, Mr. Caswell told the officer that he would not provide a sample before he spoke to his lawyer. Mr. Caswell had a cell phone with him but was told by the officer to leave it in the car. The roadside device was brought to the scene within minutes of Mr. Caswell being stopped. The officer told him repeatedly that he would not be able to speak to a lawyer until after he had performed the screening test. At trial, Mr. Caswell argued that his s. 10(b) Charter right to counsel was breached. The trial judge, however, found no breach. She concluded that the inability to consult with a lawyer prior to taking the screening test was not a reasonable excuse for not providing a sample. A summary conviction appeal judge agreed, as did a unanimous Court of Appeal.

37401

Transport Desgagnés Inc., Pétro-Nav Inc. v. Attorney General of Canada

(FC)

Taxation – Customs and excise – Legislation – Statutory interpretation

The applicant companies Transport Desgagnés Inc. and Pétro-Nav Inc. are shipowners that specialize in the transportation of liquid bulks and chemical products, as well as break bulks and dry bulks. Both companies are part of the Groupe Desgagnés. Between 1998 and 2001, the applicant companies paid customs duties on three imported tanker ships, as provided in the Customs Tariff, S.C. 1997, c. 36.

On October 24, 2009, the government via the Canada Gazette launched a consultation process regarding a proposal to exempt future imports of certain types of vessels from the payment of customs duties. The government stated that this process would not affect duty remission requests under consideration or new requests concerning ships imported before January 1, 2010. On September 23, 2010, the Governor in Council made the Ferry-Boats, Tankers and Cargo Vessels Remission Order, SOR/2010-202, granting an exemption from customs duties for certain types of vessels imported on or after January 1, 2010.

On October 5, 2012, the applicant companies applied to the Minister of Finance for a remission of customs duties with respect to the three vessels in question. The Minister denied their claim because the tankers had been imported before January 1, 2010. The companies applied for judicial review of the decision in the Federal Court. The Federal Court of Appeal dismissed the appeal.

37365

Patrick Muller v. Minister of National Revenue

(FC)

Taxation – Income tax Audits and investigations Legislation Interpretation

The applicant contacted police to claim $40,000 that was found hidden in a condominium he had previously owned. When questioned about the money, he said that he had created websites that linked to online casinos and won 20-25% of the losses of those who played through the links, but that he did not declare the income since it was from gambling and not taxable. The police contacted a Canada Revenue Agency (“CRA”) investigator to flag the undeclared earnings. A CRA auditor conducted an audit, following which notices of reassessment of the applicant were filed claiming a total of $369,094.14 in income tax. Ex parte orders were obtained to seize the applicant’s bank accounts and to access the applicant’s condo and remove assets, including four computers, which were placed under judicial guardianship. The applicant filed a notice of opposition to the reassessments but did not seek a review of the Orders. The respondent successfully applied for an ex parte order and warrant pursuant to s. 231.1(3) of the Act to inspect the computers seized from the applicant’s premises for tax collection and audit purposes. The applicant brought motions to set aside the order and warrant and to have an affidavit and notes tendered as evidence by police, held inadmissible. The motions were dismissed by the Federal Court, and the Federal Court of Appeal dismissed the appeal.