Digests

praCTICE

Pleadings

Motion to Strike

Appeal from Federal Court order (2009 FC 755) striking out appellants’ amended statement of claim for failing to state cause of action that can succeed, plead material facts—Appellants proposing class action against Canada Revenue Agency for wrongfully requiring them to collect, remit GST on exempt disbursements charged to clients—Appellants seeking amounts of GST wrongfully paid—Amended statement of claim pleading two causes of actions: (1) tort of misfeasance in public office, (2) restitution or wrongful receipt—Whether appellants pleading viable causes of action, whether pleadings sufficient—Federal Court correctly finding common law cause of action of restitution ousted by Excise Tax Act, R.S.C., 1985, c. E-15 (Act), s. 312, Tax Court of Canada Act, R.S.C., 1985, c. T-2, s. 12(1)—Therefore, only permissible way of recovering GST wrongfully paid is by going to Tax Court of Canada, following procedural rules, substantive standards set out in Part IX of Act—Relief sought by proposed class action, relief possible under Part IX of Act identical, therefore proposed class action nothing more than attempt to recover GST outside of Act—Obiter: when pleading bad faith, abuse of power, bare assertion of conclusion upon which court called upon to pronounce not allegation of material fact—Bald, conclusory allegations, without evidentiary foundation abuse of process—With respect to misfeasance in public office, individuals allegedly involved should be identified pursuant to Federal Courts Rules, SOR/98-106, r. 174—Plaintiff should at least identify particular group of individuals dealing with matter, i.e. job positions, organizational branch, office, building where individuals worked—Appeal dismissed.

Merchant Law Group v. Canada (Revenue Agency) (A-351-09, 2010 FCA 184, Stratas J.A., judgment dated July 8, 2010, 20 pp.)