Date: 20000503
Docket: T-2556-94
BETWEEN:
THOMAS JOHN O"NEIL,
Plaintiff,
- and -
HER MAJESTY THE QUEEN, as represented
by THE MINISTER OF NATIONAL REVENUE,
Defendant.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] This matter is under case management. The Plaintiff, by Order of 19 August 1999 made following an early neutral evaluation, was to file a requisition for a pre-trial conference, complete with pre-trial conference memorandum, not later than 30 November 1999. The Plaintiff attempted to file a requisition for the pre-trial conference however, because the material did not contain a pre-trial conference memorandum, the filing was rejected.
[2] Nothing further occurred after the end of November, 1999, and up to a month ago. On 10 April 2000 the Court made a Rule 47 Order that the Plaintiff attend at 9:30 a.m. on 1 May 2000, to show why this 1994 action ought not to be struck out.
[3] After hearing the Plaintiff at length and after hearing counsel for the Defendant, I decided the action should be struck out for two reasons. First, the action is an abuse of the process of the Court. Second, there has been delay, of the type found by the House of Lords in Grovit v. Doctor [1997] 1 W.L.R. 640, for not only has there be inordinate and inexcusable delay, both past and current, but also the Plaintiff has no intention of bringing the substance of this litigation and the relevant issues to a conclusion, but rather the Plaintiff wishes to use the action to revisit long past business dealings which are unrelated and irrelevant. I will now consider this in more detail, beginning with some relevant background.
BACKGROUND
[4] By way of background the initial Statement of Claim was filed 20 October 1994. That Statement of Claim was lengthy, difficult to read, lacked a reasonable cause of action and was overall a vexatious proceeding which was virtually impossible either for the Defendant to plead to or for the Court to regulate. As such, it was struck out, with reasons, on 5 December 1994, but with leave to amend so that Dr. O"Neil might try to articulate a right by which the Court might grant a remedy.
[5] An Amended Statement of Claim was filed 5 January 1995. Again, the Statement of Claim is not an easy one to understand, however, as it is a trial de novo of a reassessment of 1980 tax, one can make some sense of it, so long as one ignores extraneous material.
[6] Here I would note that the extraneous material might conceivably be pertinent in other proceedings. Unfortunately, Dr. O"Neil presently has outstanding against him a B.C. Supreme Court and a B.C. Court of Appeal vexatious litigator Order and may not commence actions in the B.C. Court system without leave. Thus, one can perhaps understand Dr. O"Neil"s frustration for he feels that he has been ill treated by lawyers, by former partners, by his brokers and by two sets of former bankers. However, those perceived wrongs are not relevant in the present instance. Indeed, to ignore the irrelevant and extraneous material is the only way by which at trial of this action might have been reduced to manageable and understandable proportions. However, Dr. O"Neil is not, at this time, prepared to proceed.
[7] Despite Dr. O"Neil"s view that there are many facets to this action and large amounts at stake as a consequence of what Revenue Canada did or did not do, this action is limited by the Statement of Claim and to Dr. O"Neil"s 1980 personal tax return, to the extent that the 1980 tax return was reassessed.
[8] As I understand the personal tax return and the re-assessments, from having looked at various documents and listened both to Dr. O"Neil and to counsel for the Defendant, the issues are first, whether Dr. O"Neil sold 5,800 shares or 6,800 shares of Chieftain Development Company Ltd. ("Chieftain"); second, the cost base of those shares, an essential calculation in order to arrive at a gain on the sale; and third, the propriety of using as a personal tax deduction payments made by Dr. O"Neil of an interest expense and of a development expense, both related to property owned by O"Neil Enterprises Ltd. While no litigation is certain, the chances of Dr. O"Neil succeeding on any of this appear slim to non-existent.
[9] Here I would touch upon and concur in the comments of the tax review board in O"Neil Enterprises Limited and T. J. O"Neil v. The Minister of National Revenue (1982) 82 D.T.C. 1732, involving assessments for a number of earlier years. Mr. Bonar, who wrote the decision, notes that Dr. O"Neil "...appears to be astute in matters of business and investment..." but that Dr. O"Neil "...demonstrated an amazing inability to come to grips in any cogent way with the many facets of the assessments which he asserted were wrong.". This inability to come to grips in a cogent manner with the issues may be a handicap in Dr. O"Neil"s analysis of his own case, its direction and its progress in this instance.
[10] Dr. O"Neil offers no cogent or acceptable reason either for the delay of some six years, up to 30 November 1999, or the ensuing five month delay from 30 November 1999 to date. Indeed, during this most recent five month delay, nothing at all occurred. Dr. O"Neil says that overall he had difficulty obtaining documents by which to prove his case, but it would seem that those documents are with regard to his business problems, which are unrelated to this litigation. As to the more recent five month delay, it is blamed on computer problems and a failure of an agent to file a pre-trial conference requisition and a pre-trial conference memorandum just last week. Dr. O"Neil does not know where that material went.
[11] Dr. O"Neil now wishes to amend the Statement of Claim yet again and then to examine for discovery three individuals. Leaving aside that the pre-trial conference requisition set out that Dr. O"Neil was ready to proceed to trial, the main difficulty I have is with the proposed amendments. The amendments, as I understand them, are to do with Dr. O"Neil"s business dealings and the treatment he received at the hands of those involved. It is just this material which was struck out of the original statement of claim as being irrelevant.
[12] While there has been inordinate delay in this instance, I do not think that the Defendant has been particularly prejudiced, for the confusion factor has remained about constant throughout. But what is pertinent is the lack of any real desire on the part of Dr. O"Neil to litigate the issues set out in the Statement of Claim, that is the issues that are relevant to the disallowances made to the 1980 tax return by the Department of Revenue.
[13] Relevant here is Grovit v. Doctor (supra) in which the House of Lords questioned the idea that a court might be powerless to give relief to a defendant, long neglected by a plaintiff, unless the defendant might show prejudice. In Grovit v. Doctor the trial judge, who initially heard the motion to dismiss the proceeding, held that there had been inordinate and inexcusable delay and that the plaintiff, having no interest in pursuing the litigation in any active way, ought to have his action dismissed for want of prosecution. Subsequently the Court of Appeal upheld that decision, pointing out that it was wrong for a plaintiff to commence and to continue litigation, which the plaintiff had no intention of bringing to a conclusion in a timely manner and that such was an abuse of process.
[14] Notwithstanding that the appellant in Grovit v. Doctor was pursuing the appeal of the dismissal order with vigour, the House of Lords was satisfied that both the trial judge and the Court of Appeal had come to a proper conclusion. Lord Woolf, in writing for the House of Lords, pointed out that there was an abuse of process by reason of the delay and an absence of any real intention to carry the case to trial. Thus the trial judge and the Court of Appeal were entitled to dismiss the proceedings.
[15] The approach of the three levels of the Court, in Grovit v. Doctor, is parallel to the concept that where a litigant engages in a wholesale disregard of time limits in the rules, such a breach ought to be considered not only from the point of view of prejudice, but also in the light of prejudice to the due administration of justice. Indeed, it may be a ground, separate and apart from the rule in Birkett v. James [1978] A.C. 297 (H.L.), the Rule constituting a three part test of inordinate delay, the inordinate delay being inexcusable and serious prejudice: here I have in mind the Court of Appeal decision in Arbuthnot Latham Bank Ltd. v. Trafalgar Holdings Ltd. [1998] 1 W.L.R. 1426 (C.A.) in which the Court pointed out that inordinate delay would become an increasingly important concept in the future, particularly when case management was in force, which is the situation here.
[16] In the present instance, the attempt to bring into these proceedings unrelated business transactions, particularly after that material had been struck out of an earlier statement of claim, is an abuse of process. Moreover, to represent to the Court, by a requisition for a pre-trial conference, that all was in order to proceed to trial, when it clearly was not, is also an abuse. So too is the ignoring of Rule 258 which requires that a requisition for a pre-trial conference be accompanied by a pre-trial conference memorandum and an ignoring of the Order of 19 August 1999, particularly drawing the Plaintiff"s attention to the requirement that there be a pre-trial conference memorandum. These abuses, in themselves, are sufficient that the action ought to be struck out.
[17] As I have also pointed out there is the concept, in Grovit v. Doctor (supra), that where there is only inordinate delay, that may be grounds for dismissing a proceeding and all the more so when a plaintiff has no real intention of pursuing the litigation. In the present instance, the Plaintiff faces a substantial but not large income tax bill. However, the Plaintiff has no real desire to litigate the tax issue set out in this action. Rather, the Plaintiff"s real concern is revisiting business dealings which predate the tax problem and which are not related to the assessment of tax made by the Minister of Revenue. All litigation must be brought to an end. That is particularly so when a plaintiff has no real intention of bringing it to an end but merely uses it as a vehicle for another agenda, just as in Grovit v. Doctor .
[18] The action stands as dismissed. The Defendant does not seek costs.
(Sgd.) "John A. Hargrave"
Prothonotary
May 3, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
| COURT FILE NO.: T-2556-94 |
| STYLE OF CAUSE: Thomas John O"Neil |
v.
Her Majesty the Queen
| PLACE OF HEARING: VANCOUVER, BC |
| DATE OF HEARING: May 1, 2000 |
| REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY |
| DATED: May 3, 2000 |
APPEARANCES:
| Mr. Thomas John O"Neil on his own behalf |
| Mr. William Mah on behalf of the Defendant |
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General
| of Canada for the Defendant |