INCOME TAX |
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Ross v. Canada
ITA-8972-99
2003 FCT 534, Hargrave P.
29/4/03
14 pp.
Motion to set aside writ of seizure, sale of September 30, 1999, founded on certificate of even date issued under Income Tax Act, s. 223(2)--Present proceeding application for stay of order under r. 398, or application to set aside order under r. 399--Applicant arguing M.N.R. failed to obtain assignment of debt owed to province and thus Minister, paying as volunteer, pursuant to federal-provincial tax collection agreement, had no right to claim full amount of income tax assessed--Therefore, according to him, certificate invalid, writ of seizure and sale also invalid--Applicant already applied for, received judicial review from Trial Division, Federal Court of Appeal, of requirement to pay of May 16, 2001, relating to unpaid taxes for 1989, 1990 taxation years-- Unjust enrichment or unjust benefit obtaining of benefit neither intended as gift nor legally justified--While principles of unjust enrichment still developing, courts providing remedy where it would be unconscionable to keep benefit, that is restitution--In Michelin Tires (Canada) Ltd. v. Canada (C.A.), [2001] 3 F.C. 552, Evans J.A. held restitutionary claims have both legal, equitable origin--Equitable doctrine of subrogation may be independent of any assignment--Simplistic to believe mere fact of payment, pursuant to federal/provincial tax collection arrangement, of sum to province of British Columbia, by federal Government, either relieves applicant from payment of provincial portion of income tax or makes him invulnerable to collection of provincial share of taxes by federal Government--Doctrine of res judicata providing sound reason by which to dismiss present motion--No evidence by which to substantiate argument federal Government has paid provincial tax debt for applicant--Litigation of issue which ought to have been litigated as part of earlier proceeding may be abuse-- Although clear abuse in present case, Court reluctant to award solicitor-client costs--Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1, s. 223--Federal Court Rules, 1998, SOR/98-106, rr. 398, 399.