Laquerre v. Canada

Laquerre v. Canada Court (s) Database Federal Court of Appeal Decisions Date 2024-02-16 Neutral citation 2024 FCA 31 File numbers A-168-22 Decision Content Date: 20240216 Docket: A-168-22 Citation: 2024 FCA 31 [ENGLISH TRANSLATION] PRESENT: LEBLANC J.A. BETWEEN: MARIO LAQUERRE Appellant and HIS MAJESTY THE KING Respondent Dealt with in writing without appearance of parties. Order delivered at Ottawa, Ontario, on February 16, 2024. REASONS FOR ORDER BY: LEBLANC J.A. Date: 20240216 Docket: A-168-22 Citation: 2024 FCA 31 PRESENT: LEBLANC J.A. BETWEEN: MARIO LAQUERRE Appellant and HIS MAJESTY THE KING Respondent REASONS FOR ORDER LEBLANC J.A. [1] The appellant is appealing a judgment issued by Justice Boyle of the Tax Court of Canada on August 9, 2022 (cited as 2022 TCC 90). In his judgment, Justice Boyle dismissed the appellant’s motions to reopen appeals from assessments that were made against him for the 1999 to 2002 and 2005 taxation years, appeals that were eventually resolved by the appellant’s trustee in bankruptcy in 2014. This resolution gave rise to the submission, by the trustee, of a notice of discontinuance in each file. [2] The agreement on the contents of the appeal book is, for all practical purposes, the last meaningful pleading in this case. Its submission dates back to September 20, 2022. [3] In a motion brought on December 12, 2023, the respondent is asking the Court to dismiss this appeal for undue delay. He is also asking that it be dismissed on the ground that it has no chance of success. On this last point, the respondent claims that the notice of appeal submitted in this case does not raise any errors by Justice Boyle. Furthermore, the respondent states that this appeal would become part of a long list of proceedings that have been unsuccessfully commenced by the appellant in other files concerning either him or related persons, proceedings that aimed to have the judgments issued in those files set aside or to challenge findings that were made in those judgments. [4] The appellant, who for several years has been involved in many disputes, both civil and criminal in nature, with the Canada Revenue Agency (the CRA) and who states that [translation] “since 2006”, he has been a victim of [translation] “major fraud” by the CRA, first filed, on December 19, 2023, what was intended to be his responding motion record to the respondent’s motion to dismiss. However, this record was received by the Court registry but not filed because it did not comply with the applicable requirements of the Federal Courts Rules, SOR/98-106 (the Rules). On December 22, 2023, the respondent, for the same reasons, objected to the filing of said record. The respondent also challenged the method of service used by the appellant. In accordance with paragraph 72(1)(b) of the Rules, the registry sought a direction from the Court as to whether the responding motion record submitted for filing by the appellant should be accepted or rejected. I will return to this later on in these reasons. [5] On January 9, 2024, the appellant chose to bring his own motion in the hopes of [translation] “correcting the response to the motion to dismiss the appeal and providing an update with many new pieces of evidence”, since it seemed necessary to him to [translation] “redo the affidavit and the exhibits in accordance with rule 306 of the Federal Courts Rules”. [6] The appellant, who is representing himself, took the wrong approach for two reasons. First, his motion is based on the rules governing applications for judicial review, which do not apply in this case as this is an appeal that the appellant filed against the decision of Justice Boyle. On appeal, the “book” that is before the Court is the “appeal book”, as constituted under rules 343 and 344 of the Rules. It does not consist of the affidavits and exhibits of the parties, as would be the case if the Court were dealing with an application for judicial review. The appellant’s motion shows a misunderstanding of the applicable rules. The result is a formal and substantive defect that, on its own, could justify dismissing the motion. [7] Second, and even more importantly, even supposing that the appellant’s motion is properly before the Court, there is nothing in it that satisfies the criteria for the filing of new evidence on appeal; these criteria are set out under rule 351 of the Rules, as interpreted by the Court. The same is true of the motion record, submitted for filing by the appellant, in response to the respondent’s motion to dismiss the appeal. [8] To satisfy these criteria, the appellant had to demonstrate that the new evidence that he wanted to include in the record “(1) could not have been adduced at trial with the exercise of due diligence; (2) is relevant in that it bears on a decisive or potentially decisive issue on appeal; (3) is credible in the sense that it is reasonably capable of belief; and (4) is such that, if believed, could reasonably have affected the result in the court below: Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at p. 775, (1979) 30 N.R. 181; May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809 at para. 1071” (Coady v. Canada (Royal Mounted Police), 2019 FCA 102 at para. 3 [Coady]). [9] This test is demanding, and the appellant had to do more than simply make vague and general statements. The main shortcoming relates to the fact that it is not known what prevented the appellant, in showing due diligence, from filing his new evidence at trial, particularly when it can be seen from the record that this evidence was reportedly discovered [translation] “between 2020 and 2022”. It is also not known whether this new evidence bears on a “decisive or potentially decisive issue on appeal”. In my view, that is fatal to the appellant’s effort. The fact that the appellant proceeded under the cover of an application for an extension of time changes nothing since he still had to demonstrate, in particular, that his application to file new evidence had some merit (Alberta v. Canada, 2018 FCA 83, at para. 44, citing Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 (F.C.A.)). However, as we have just seen, this was not demonstrated. [10] Should the Court nevertheless exercise its discretion and allow this evidence to be filed even though the appellant did not satisfy the criteria set out in rule 351 of the Rules (Coady at para. 3)? For the reasons that follow, my view is that it should not. [11] From the motion record filed by the respondent, I note that the approach taken here by the appellant has every appearance of the modus operandi observed in other files where, each time a judgment was not in the appellant’s favour, the appellant cited the discovery of new facts in order to have the judgment set aside or even attempted to escape the consequences of the judgment by resorting to delaying tactics. In this regard, I refer to the description given by Justice Roussel, now a judge of this Court, in Income Tax Act (Re), 2018 FC 1012; to the judgment of the Court of Appeal of Quebec in Laquerre c. R., 2021 QCCA 157; and to the order issued on June 27, 2023 by Justice Rochester, also now a judge of this Court, in Federal Court file numbers T‑1594-06 and T-699-07. All these attempts failed. [12] I also note that in her order, Justice Rochester pointed out that [translation] “there is no doubt that [the appellant] had every opportunity to assert his rights since 2008” and that “[d]espite this, he insist[ed] on using the limited legal resources of the Court for unfounded motions brought under rule 399”. It is useful to recall that this rule, and specifically subrule 399(2), allows for orders to be set aside “by reason of a matter that arose or was discovered subsequent to the making of the order” or “where the order was obtained by fraud.” [13] It is also useful to recall that this is exactly what the appellant sought to assert, in the form of motions to reopen files based on the discovery of new facts, before Justice Boyle and, quite recently and also unsuccessfully, before his colleague Justice Gagnon in Fiducie Mario Laquerre v. The King, 2024 TCC 5. [14] This context calls for the utmost vigilance, and this vigilance militates against exercising the residual discretion flowing from rule 351 of the Rules. That is to say, there is no ground for relieving the appellant of the failure to satisfy the requirements of that provision. Therefore, his motion will be dismissed. [15] I now return to the respondent’s motion to dismiss. Normally, a delay in a proceeding commenced before this Court is noted by a notice of status review issued under rule 382.2 of the Rules. This notice then triggers a proceeding to justify the delay, which may lead either to the rejection of the originating document, whether it be an appeal or an application for judicial review, or to the continuation of the proceeding according to the directions given by the Court and the schedule that it sets. No such notice was issued in this case, and so I hesitate to allow this component of the respondent’s motion. With respect to the component related to this appeal supposedly having no chance of success, I also hesitate to consider it because it invites a review of the merits of the appeal in a situation where the Court has only the notice of appeal to do so. The sample is therefore too small to conduct a full and meaningful review of the chances of success, on the merits, of this appeal. [16] That being said, I will not dismiss the respondent’s motion; I will hold it in abeyance. Indeed, I am of the view that, in light of the appellant’s judicial history, as can be seen from the cases that are cited in these reasons and to which he was a party, either directly or through related parties, this is a matter where the Court must necessarily exercise its plenary jurisdiction, which confers on it the powers necessary, beyond the powers vested in it by statute, to ensure the proper conduct of the proceedings before it in order to, in particular, prevent abuses of process (Dugré v. Canada (Attorney General), 2021 FCA 8 at paras. 20–21). [17] I will therefore allow this appeal to proceed, with the respondent’s motion to dismiss in the background. However, I will subject the appeal to a timeline that the appellant will need to follow to the letter. In this regard, the parties will have 10 days as of the date of this order to agree on a timeline and file it for approval by the Court. [18] That timeline will need to include the following steps: (a)preparation (using the agreement on the contents of the appeal book filed on September 22, 2022) and filing of the appeal book (rule 345 of the Rules); (b)service and filing of the appellant’s memorandum of fact and law (subrule 346(1) of the Rules); (c)service and filing of the respondent’s memorandum of fact and law (subrule 346(2) of the Rules); (d)service and filing of the requisition for hearing (rule 347 of the Rules); and (e)service and filing of the book(s) of authorities (rule 348 of the Rules). [19] If the parties cannot come to an agreement, the Court will, once the 10‑day time frame has expired, impose a timeline on the parties without further notice or delay. [20] Once the timeline has been established, the respondent, in the event that the appellant fails to observe it, will have the opportunity to resubmit his motion to dismiss by sending—and serving—a simple letter to the Court registry. The appellant will then have seven days from the date the respondent’s letter was served to serve and file an acceptable justification for his delay. If the justification put forward by the appellant is not acceptable in the Court’s view—or if the appellant fails to submit one within said time frame—this appeal may be dismissed without further notice or delay. [21] Moreover, for further clarity regarding next steps, Justice Boyle’s judgment will eventually need to be reviewed, as the respondent rightly mentions in his response to the appellant’s motion, using the evidence he had before him, or at least what is inventoried in the agreement on the contents of the appeal book filed in September 2022. It will then be up to the Court to determine whether, in light of the evidence he had before him, Justice Boyle, in dismissing the appellant’s motions to reopen files, made an error justifying its intervention. [22] Lastly, regarding the fate of the appellant’s motion record in response to the motion to dismiss the appeal, I have not authorized its filing in a direction issued on the date of this order because of its many shortcomings: no style of cause on the affidavit, exhibits that are unsworn or not mentioned in the affidavit, record with no page numbers, no table of contents, and documents that are not in the order in which they must appear in the record. [23] However, I am of the opinion that that is inconsequential because I considered the appellant’s motion, the purpose of which was to correct his response to the motion to dismiss. [24] There will be no order as to costs because the respondent did not seek them in his response to the appellant’s motion. “René LeBlanc” J.A. Certified true translation Melissa Paquette, Jurilinguist FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-168-22 STYLE OF CAUSE: MARIO LAQUERRE v. HIS MAJESTY THE KING MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR ORDER BY: LEBLANC J.A. DATED: February 16, 2024 WRITTEN REPRESENTATIONS BY: Mario Laquerre FOR THE APPELLANT Representing himself Anne Poirier Christophe Tassé-Breault FOR THE RESPONDENT SOLICITORS OF RECORD: Shalene Curtis-Micallef Deputy Attorney General of Canada FOR THE RESPONDENT