Merchant Law Group v. Canada (Revenue Agency)

Merchant Law Group v. Canada (Revenue Agency)

The Court allowed the appeal because the Prothonotary misapprehended the law and facts by treating jurisdiction and the question of reasonable cause of action as inseparable from certification; the issues raised on the defendants' motion to strike (Tax Court exclusivity, s312 bar, and failure to disclose a cause of action) are pure legal issues determinable on the pleadings and should be heard first. The Prothonotary's order was set aside and the motion to strike ordered to proceed before the certification motion.

Citation
2008 FC 1371
Parties
Plaintiff (respondent): MERCHANT LAW GROUP; Plaintiff (respondent): STEVENSON LAW OFFICE; Plaintiff (respondent): ANNE BAWTINHIMER; Plaintiff (respondent): DUANE HEWSON; Plaintiff (respondent): JUDITH LEWIS; Plaintiff (respondent): MARCEL WOLF; Defendant (appellant): CANADA REVENUE AGENCY; Defendant (appellant): ATTORNEY GENERAL OF CANADA
Court
Federal Court
Jurisdiction
Canada
Judgment Date
12 December 2008
Procedural Posture
Class Action Seeking Recovery of GST on Disbursements / Appeal From Prothonotary Order Directing Motion to Strike Be Heard With Certification Motion
Outcome
Appeal allowed; Prothonotary's decision dated July 11, 2008 set aside; defendants' motion to strike to proceed before plaintiffs' certification motion
Legal Topics
Jurisdiction, Motion to Strike, Certification, Misfeasance in Public Office, Excise Tax Act S312, Exclusive Jurisdiction of Tax Court, Unjust Enrichment
Source Language
English
Tax Law Class Actions Civil Procedure Public Law Tort Law Restitution Jurisdiction Motion to Strike +5 more

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Parties

MERCHANT LAW GROUP

Plaintiff (respondent)

STEVENSON LAW OFFICE

Plaintiff (respondent)

ANNE BAWTINHIMER

Plaintiff (respondent)

DUANE HEWSON

Plaintiff (respondent)

JUDITH LEWIS

Plaintiff (respondent)

MARCEL WOLF

Plaintiff (respondent)

CANADA REVENUE AGENCY

Defendant (appellant)

ATTORNEY GENERAL OF CANADA

Defendant (appellant)

Procedural Posture

Class Action Seeking Recovery of GST on Disbursements / Appeal From Prothonotary Order Directing Motion to Strike Be Heard With Certification Motion

Legal Issues

  1. 1 Whether the Prothonotary erred in directing that the defendants' motion to strike be heard concurrently with the certification motion
  2. 2 Whether the Federal Court has jurisdiction to entertain claims for recovery of GST/HST in light of the Tax Court of Canada Act s12 and the Excise Tax Act s312
  3. 3 Whether the amended statement of claim discloses a reasonable cause of action in misfeasance in public office or alternatively restitution/unjust enrichment

Ratio Decidendi

The Court allowed the appeal because the Prothonotary misapprehended the law and facts by treating jurisdiction and the question of reasonable cause of action as inseparable from certification; the issues raised on the defendants' motion to strike (Tax Court exclusivity, s312 bar, and failure to disclose a cause of action) are pure legal issues determinable on the pleadings and should be heard first. The Prothonotary's order was set aside and the motion to strike ordered to proceed before the certification motion.

Court Disposition

Appeal allowed; Prothonotary's decision dated July 11, 2008 set aside; defendants' motion to strike to proceed before plaintiffs' certification motion

Orders

  • This appeal is allowed and the decision of the learned Prothonotary dated July 11, 2008 is set aside
  • The defendants' motion to strike pursuant to Rule 221 of the Federal Courts Rules will proceed before the plaintiffs' motion for certification