Like the rules of provincial courts, the Tax Court General Procedure Rules allow a party or the Court to strike pleadings to speed up the appeal and keep out abusive or improper claims. (See Rule 53(1)(d) of the Tax Court of Canada Rules (General Procedure).) Here, the taxpayer brought a motion to strike some of the Crown’s case on a tax shelter investment.
The purpose of pleadings is to clarify each party’s view of the facts and law and the essence of the dispute between the parties. If a pleading raises an irrelevant issue or facts that cannot, even if true, allow the party to succeed, the other party and the Court must waste time in responding to the issue. So this rule can help focus issues and speed up the result.
“[2] The test for striking a pleading is set out by the Supreme Court of Canada in The Queen v. Imperial Tobacco Canada, 2011 SCC 42 (CanLII), … at paragraph 17:
… A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable causes of action:… Another way of putting the test is that the claim has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial: ….
“[13] The Court’s role in a motion to strike is not, … to decide which parties’ view of the law is correct. … As stated in Imperial Tobacco at paragraph 21:
… Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.”
The pleadings define the scope for discovery. If facts are raised in the pleadings, a party may ask questions about them in discovery. Here, the plaintiff and the Court suspected that the Crown was deliberately vague.
“[22] … Kinglon suggested that the Respondent was attempting to wait in the weeds until examinations for discovery in order to see what evidence might emerge to support its various theories of the case. I agree that this is what the Respondent appears to be doing.
“[23] Paragraph 22 of Imperial Tobacco states:
… It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses.”
So the Court struck out the tax shelter related parts of the Crown’s Reply but allowed the Crown to amend the Reply because: “At this early stage in the proceeding [before discovery] it is difficult to imagine how permitting such an amendment would prejudice Kinglon in a way that could not be compensated by costs on this motion.” (Para. 26.)
See Kinglon Investments Inc. v. The Queen, (2014 TCC Graham)